Abstract
The shift to non-tariff measures and regulatory behind-the-border issues in commercial policy—and thus to matters traditionally pertaining to domestic law of Member States and the European Union—call for enhanced inclusiveness in policy-making. Such inclusiveness, under current rules of exclusive powers and mixed agreements, mainly focuses on the final stages of negotiations. It undermines the authority and treaty-making powers of the Union, frustrating legitimate expectations and trust of trading partners. Instead, major issues and debates on trade policy should be front-loaded and not taking place at the stage of consent and signature, prior to ratification and the adoption of implementing legislation. In assessing current procedures and its shortcomings under the practice of mixed agreements, the paper suggest developing and introducing a European Trade Act, perhaps called International Trade, Investment and Co-operation Regulation (ITICR). In comparison with, and referring to, the United States Trade Act, the paper expounds the potential scope and functions of a European Trade Act under the Lisbon Treaties and its assistance in achieving the goal of front-loading trade policy and investment policy debates within the Union. A Trade Act reduces the risks under the bifurcated system of exclusive and mixed competences of the Union in international economic law. It bears the potential to enhance inclusiveness and thus democratic legitimacy while at the same time supporting effective treaty-making powers of the European Union.
The author is indebted to Mathias Kende for valuable comments and to the editors and Anja Trautmann for carefully reviewing the paper.
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Notes
- 1.
For a recent discussion of mixed agreements and further references see Cottier (2016).
- 2.
European Commission, Press Release, European Commission proposes signature and conclusion of EU-Canada trade deal, IP-16-2371, 5 July 2016: “The deal is set to benefit people and businesses – big and small – across Europe as of the first day of its implementation. To allow for a swift signature and provisional application, so that the expected benefits are reaped without unnecessary delay, the Commission has decided to propose CETA as ‘mixed’ agreement. This is without prejudice to its legal view, as expressed in a case currently being examined by the European Court of Justice concerning the trade deal reached between the EU and Singapore. With this step, the Commission makes its contribution for the deal to be signed during the next EU-Canada Summit, in October.”
- 3.
Marmon (2016).
- 4.
German Constitutional Court, Applications for a Preliminary Injunction in the “CETA” Proceedings Unsuccessful; Press Release No. 71/2016 of 13 October 2016.
- 5.
BBC News, Belgium Walloons block key EU Ceta trade deal with Canada, 24 October 2016. The Wallon Parliament, upon further negotiations with capital and the EU agreed to consent on 27 October 2016 and CETA was signed on 30 October 2016; The Guardian, Belgian politicians drop opposition to EU-Canada trade deal, 27 October 2016.
- 6.
Charlemagne, The age of vetocracy, The Economist, 29 October 2016, p. 26.
- 7.
TTIP has failed – but no one is admitting it, says German Vice-Chancellor Sigmar Gabriel: Germany’s Vice-Chancellor said in 14 rounds of talks neither side had agreed on a single common chapter out of the 27 being deliberated, Independent, 28 August 2016.
- 8.
Austrian economy minister adds his “nein” to TTIP debate, EurActive.com, 31 August 2016, https://www.euractiv.com/section/trade-society/news/austrian-economy-minister-adds-his-nein-to-ttip-debate/ (last accessed 1 March 2017).
- 9.
For the evolutionary interdependence of substance and decision-making structures see Cottier (1993).
- 10.
For example German Constitutional Court, Judgment of 30 June 2009, 2 BvE 2/08—Lisbon Treaty, headnote 1: “Article 23 of the Basic Law grants powers to take part in and develop a European Union designed as an association of sovereign states (Staatenverbund). The concept of Verbund covers a close long-term association of states which remain sovereign, a treaty-based association which exercises public authority, but whose fundamental order is subject to the decision-making power of the Member States and in which the peoples, i.e. the citizens, of the Member States remain the subjects of democratic legitimation.” The notion of Staatenverbund was introduced in case law in assessing the Maastricht Treaty, BVerfGE 89, 155 (Judgment of 12 October 1993).
- 11.
- 12.
For a discussion see Cottier (2009a).
- 13.
See Cottier and Trimberg (2015).
- 14.
CJEU, case 22/70, Commission v. Council (AETR), ECLI:EU:C:1971:32.
- 15.
Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union’s rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization Regulation (EC) No 3286/94 – procedures to ensure the exercise of the EU’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization, OJ 2014 L 189/50.
- 16.
Council of the European Union, Partial Declassification 9036/09, 14 December 2015.
- 17.
Council of the European Union, Declassification 11103/B DCL 1, 9 October 2014.
- 18.
European Commission, DG Trade, TTIP, http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/ (last accessed 1 March 2017).
- 19.
Directives for the Negotiation on a Comprehensive Trade and Investment Agreement, called the Transatlantic Trade and Investment Partnership, between the European Union and the United States of America, Council of the European Union, Doc. 11103/13 DCL 1, 17 June 2013.
- 20.
See generally Jackson (1984), Jackson (1997), adapted in Jackson (2000), p. 367; Leebron (1997); Fergusson IF, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service 15 June 2015, https://fas.org/sgp/crs/misc/RL33743.pdf (last accessed 1 March 2017).
- 21.
- 22.
An Act to Amend the Tariff Act of 1930, Part III, Pub. L. No. 316, 48 Stat. 943 (1934).
- 23.
The Anti-dumping Agreement was subsequently implemented by through administrative action, Leebron (1997), p. 183, note 36.
- 24.
Cottier (2014).
- 25.
Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (1975), 19.U.S.C. paras. 22101-2487 (1976).
- 26.
Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat. 2498 (1984).
- 27.
Omnibus Trade and Competitive Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (1988), authorizing to negotiate and conclude the GATT Uruguay Round agreements.
- 28.
Bipartisan Trade Promotion Authority Act (BTPA) of 2002, Pub. L. No. 107-210, 116 Stat. 933 (2002), 19. U.S.C. paras. 3803–3805; U.S. Trade Promotion Authority Act, which was enacted as Title XXI of The Trade Act of 2002 (Pub. L. No. 107-210).
- 29.
The Bipartisan Comprehensive Trade Priorities and Accountability Act of 2015 (BCTPA). The proposed BCTPA was introduced on 16 April 2015, by Senators Hatch and Wyden and Representative Ryan (H.R. 1890), https://www.congress.gov/bill/114th-congress/senate-bill/995/text, and signed into law by the President on 29 June 2015 as a complex package deal including trade adjustment measures in the Trade Preferences Extension Act of 2015 (https://www.congress.gov/bill/114th-congress/house-bill/1295/text) as Title III of the Defending Public Safety Employées’ Retirement Act, https://www.congress.gov/bill/114th-congress/house-bill/2146/text. The legislation was largely modelled on the Bipartisan Comprehensive Trade Priorities Act of 2014 (H.R. 3830, S. 1900), for a comparison see https://democrats-waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/Side-by-side%20TPA%20Comparison.pdf (all last accessed 1 March 2017).
- 30.
Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 22 December 1999.
- 31.
United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322, completed 18 August 2009, with a series of reports of the Panel and the Appellate Body under Articles 21(3)(c) and 21(5) DSU.
- 32.
See fn. 29.
- 33.
E.g. Food safety concerns are out front as TPA “fast track” moves through Congress, Free Speech Ration News, 21 May 2015, https://fsrn.org/2015/05/food-safety-concerns-are-out-front-as-tpa-fast-track-moves-through-congress/ (last accessed 1 March 2017).
- 34.
Assessment made based upon discussions with and by Steve Charnovitz and Michael Gadbaw on 25 October 2016 on the panel on Regulatory Coordination, held at Georgetown University in cooperation with the Swiss Embassy under the joint programme Law in Globalizing World, Washington DC, and informal discussions on the subject.
- 35.
Cf. The Guardian, Trump and Clinton’s free trade retreat: a pivotal moment for the world’s economic future, 20 August 2016; On the Issues: Hillary Clinton on Free Trade, http://www.ontheissues.org/2016/Hillary_Clinton_Free_Trade.htm (last accessed 1 March 2017).
- 36.
See fn. 7 and 8.
- 37.
See Section 4.2.
- 38.
The proposal was first made under the heading of International Trade, Cooperation and Investment Regulation, Cottier (2016), p. 38. The sequence is changed here to facilitate a readable abbreviation.
- 39.
Art 207(2) TFEU reads: The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
- 40.
Protocol (no 1) on the Role of National Parliaments in the European Union, OJ 2010 C 83/203; Protocol (no 2) on the Application of the Principles of Subsidiarity and Proportionality the High Contracting Parties, OJ 2010 C 83/206.
- 41.
See House of Lords, EU Committee, The Role of National Parliaments in the European Union, 9th Report of Session 2013/2014, HL Paper 151; ERP Group: Relations with National Parliaments, The New role of National Parliaments in European Decision-Making: Implications of the Lisbon Treaty, Brussels 2009; Fabbrini and Granat (2013).
- 42.
See generally Cottier (2009b).
- 43.
See fn. 3 and 5.
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Cottier, T. (2017). Front-Loading Trade Policy-Making in the European Union: Towards a Trade Act. In: Bungenberg, M., Krajewski, M., Tams, C., Terhechte, J., Ziegler, A. (eds) European Yearbook of International Economic Law 2017. European Yearbook of International Economic Law, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-58832-2_2
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