The Influence of TTIP on the Level of
Democratic Accountability in the EU
Submitted by: Marisela Berkelmans Student number: 6098339
LL.M. European Union Law University of Amsterdam Supervisor: dr. Joana Mendes 13 ECTS
Inhoud
Abstract ... 3
1. Introduction ... 3
2. Regulatory Cooperation under TTIP ... 7
3. Theoretical Model of Democratic Accountability ... 11
4. The Negotiation and Conclusion of Agreements Under the CCP ... 16
4.1 The first element of Democratic Accountability: Information ... 17
4.1.1 Legal Framework ... 17
4.1.2 Possible Influence of TTIP on the application of the requirement to provide Information .. 19
4.2 The Second element of Democratic Accountability: Justification and Explanation ... 21
4.2.1 Legal Framework ... 21
4.2.2 Possible Influence of TTIP ... 22
4.3 The third element of Democratic Accountability: Judgment/Sanctions ... 24
4.3.1 Legal Framework ... 24
4.3.2 Possible Influence of TTIP ... 25
4.4 Preliminary Conclusion ... 26
5. The Implementation into the EU Legal Order ... 28
5.1 Legal Framework for the implementation of FTAs into the EU legal order ... 28
5.1.1 Legislative Measures ... 29
5.1.2 Non-legislative Measures ... 31
5.2 The Influence of the Regulatory Cooperation Chapter ... 33
5.2.1 The Institutional Mechanism ... 33
5.2.2 Ex Ante Regulatory Cooperation Requirements ... 36
Abstract
This research analyses the influence horizontal regulatory cooperation as envisaged by TTIP may have on the level of democratic accountability between the European Commission and the European Parliament. Democratic accountability is defined as having three elements: providing information, explanation or justification, and a judgment followed by the possibility of sanctions. The analysis is divided into two levels. The first level is that of the negotiation and conclusion of international agreements. It sets out the framework provided by EU law, which is compared to the actual practice with regard to TTIP. This shows how much influence the EP has on the content of the regulatory cooperation provisions in TTIP. The second level is that of the implementation of these provisions of the agreement into the EU legal order. This also sets out the framework provided by EU law, which concerns both legislative and non-legislative acts. The level of democratic accountability towards the EP as it currently stands is compared to the expected influence regulatory cooperation under TTIP may have on it once the relevant provisions are implemented - based on its current textual proposal. By analysing both of these levels, the analysis provides an overview of the level of democratic accountability with regards to both the content of the Regulatory Cooperation Chapter and its eventual implementation. The study finds that there has been a tendency of strengthening the role of the EP in regard to the negotiation and conclusion of international agreements under the CCP. The TTIP negotiations have so far shown a higher level of democratic accountability compared to previous international agreements. This may show to be another step in the already existing tendency of the strengthening of the role of the EP in the negotiation and conclusion of international agreements under the CCP. With regard to the implementation, the regulatory cooperation chapter states that it will neither influence existing legislative and regulatory procedures nor the role the EP has in them. However, firstly, by creating an institutional mechanism which brings together regulators but not parliaments it may promote technocratic non-legislative decision-making in the field of international trade. Secondly, since the Regulatory Cooperation Chapter is focused primarily on the early
cooperation, it is geared towards cooperation in the pre-legislative phase – the stage preceding parliamentary involvement. This may exclude the possibility of effective parliamentary oversight of transatlantic regulatory cooperation even further.
1. Introduction
In July 2013, the EU and the US started the negotiations for the Transatlantic Trade and Investment Partnership (TTIP), which will create a free trade area between the US and the EU – a free trade area which has been estimated to cover nearly half of the world GDP, 30% of
global trade, and roughly 800 million people.1 The agreement will be comprised of three components, namely market access, regulatory issues and Non-Tariff Barriers (NTBs), and rules.2 The main objective of the creation of this transatlantic free trade area is to generate “new economic opportunities for the creation of jobs and growth through increased market access and greater regulatory compatibility and setting the path for global standards”.3
TTIP is aimed not only at reducing tariff barriers, but also at reducing non-tariff barriers – which are
considered to constitute the largest impediment to Transatlantic trade.4 The agreements aims
at “removing unnecessary obstacles to trade and investment” by means of “mutual
recognition, harmonisation and through enhanced cooperation between regulators”.5 One of
TTIP’s main innovations can be found in its Regulatory Cooperation Chapter, which creates a general framework and a permanent bilateral mechanism for transatlantic regulatory
cooperation. Rather than obliging the parties to achieve a specific regulatory outcome, this ‘horizontal’ chapter sets out the procedures that are to be followed regarding future regulatory
cooperation. TTIP will therefore function as a ‘living agreement’.6
Once the parties agree on any sector specific regulatory outcomes, these will then be included in sectoral annexes and become legally binding. The European Commission has released a textual proposal for the Regulatory Cooperation Chapter in May 2015 and in March 2016; as there is no definitive version available yet, the following analysis will focus on the current textual proposal. Regarding its scope, the current textual proposal states that the horizontal chapter will apply to cooperation in “[any area or sector] covered by this agreement that has or is likely to have a significant impact on trade or investment between the Parties, in relation to which regulatory
authorities of both Parties have determined common interest”.7 The regulatory measures it
would apply to, the “measures of general applicability”, would not only include legislative measures such as regulations and directives, but also non-legislative measures such as
1 Mark Venhaus, ‘An unequal treaty: TTIP and inequality in Europe’, Progressive Economy: Call for papers
(2014/2015); Richard W. Parker and Alberto Alemanno,’ A Comparative Overview of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment Partnership’, Columbia Journal of European Law, Vol. 22(1) (2016) p.1-68.
2 Council Directive 11103/13 of 17 June 2013 for the Negotiation on the transatlantic Trade and Investment
Partnership between the European Union and the United States of America (Declassified 9 October 2014) [hereinafter: TTIP negotiation mandate], par.5
3
TTIP negotiation mandate, par.7
4 Parker and Alemanno, p.2; 5TTIP negotiation Mandate, par.25
6 K. De Gucht, ‘Transatlantic Trade and Investment Partnership (TTIP) – Solving the Regulatory
Puzzle’, SPEECH/13/801, (10 October 2013)
7
Current proposal RCC (21 March 2016), art.x.3(1); [Alemanno has noted that a clear definition of the notion of transatlantic impact to trade has not been provided yet - Alemanno, Alberto. "The Transatlantic Trade and Investment Partnership (TTIP) and Parliamentary Regulatory Cooperation." European Parliament Policy Report, Brussels (2014), p. 44].
delegated acts and implementing measures.8 It has been estimated that if TTIP succeeds in reducing the unnecessary regulatory divergences, the Regulatory Cooperation Chapter (the ‘horizontal’ chapter) may account for two-thirds of trade benefits of the entire agreement.9
TTIP, and especially its horizontal cooperation mechanism, is generally expected to have a positive influence on transatlantic trade and investment, and therefore on the economy.
On the other hand, the TTIP negotiations have sparked public debate because it is
expected to have a negative influence on the democratic legitimacy of EU policy making.10
This has also caused several anti-TTIP demonstrations and the European Citizens’ Initiative “Stop TTIP”.11
Most democratic concerns are based on the regulatory cooperation mechanism
as envisaged in the Regulatory Cooperation Chapter,12 and especially whether such a
mechanism would place too much power with the executive branch – the European
Commission - at the expense of the European Parliament.13 In spite of these concerns, it has also been stated that TTIP will not alter the parties existing legislative or regulatory systems,14 which is also reiterated in the preamble to the current textual proposal for TTIP.15 Whereas TTIP is not expected to alter the constitutional framework of the EU, the mechanism of regulatory cooperation envisaged by TTIP is expected to have a negative influence over the extent of parliamentary oversight of the European Parliament over the Commission. This implies that the current EU constitutional framework allows or leaves room for any changes TTIP is expected to cause. Therefore, an added theoretical lens will be needed in order to assess the possible influence of the regulatory cooperation mechanism on the relation between the Commission and the European Parliament (EP). This analysis will therefore apply the theory of ‘democratic accountability’ in order to analyse to what extent the regulatory cooperation mechanism as envisaged by TTIP may influence the relation between the Commission and the European Parliament (EP). Democratic accountability is defined as
8
Current Proposal RCC, art.x2(b); Art. 288, 290, 291 TFEU
9 Parker and Alemanno, p.2; Final Project Report: Reducing Transatlantic Barriers to Trade and Investments, An
Economic Assessment, Study Commissioned by the European Commission to the Centre for Economic Policy Research (London, March 2013).
10 A. Meuwese, ‘Constitutional aspects of regulatory coherence in TTIP: An EU perspective’, Law & Contemp.
Probs. 78 (2015), pp.153-174, Gerstetter (2014), Jančić (2016)
11
Jančić, p.24; “Stop TTIP”Available at
<http://ec.europa.eu/citizens-initiative/public/initiatives/non-registered/details/2041>; EurActiv, ‘Thousands across Europe Protest against TTIP’, (20 April 2015), available at <http://www.euractiv.com/section/trade-society/news/thousands-across-europe-protest-againstttip/>.
12
Meuwese (2015)
13 Alemanno (2014); Jančić (2016), Gerstetter (2014) 14
European Commission, ‘TTIP and regulation: An overview’ European Union (2015) p.6; Meuwese (2015) p.157; Gerstetter, p.6;
15
having three elements: providing information, explanation or justification, and a judgment followed by the possibility of sanctions. As the aim of the research is to assess the influence regulatory cooperation under TTIP may have, a comparison of the current legal framework and the expected effect of TTIP will be made. The analysis will answer the question whether TTIP can be expected to influence the level of democratic accountability between the
Commission and the EP. As the influence TTIP is expected to have on issues of democratic legitimacy – or in this case democratic accountability – mostly stem from the horizontal regulatory cooperation as set out in the Regulatory Cooperation Chapter, this chapter will be the focal point of the analysis. However, in order to fully assess this level of democratic accountability in regard to regulatory cooperation under TTIP, the analysis will need to be divided into two levels. First of all, the process of the negotiation and conclusion of the international agreement will be analysed. The extent to which the Commission can be said to be democratically accountable to the EP with regard to the negotiation and conclusion of the agreement is relevant to this research because it is decisive for the amount of influence the EP will have with regard to the content of the agreement. The extent to which the EP has been able to influence the content of the Regulatory Cooperation Chapter of TTIP may influence the overall level of democratic accountability regarding this chapter. Secondly, the procedures for the implementation of the Regulatory Cooperation Chapter into the EU legal order will be analysed. The extent to which the Commission is democratically accountable to the EP is decisive for the amount of influence the EP will have on the actual functioning of the
agreement. In short, this research will apply the theory of democratic accountability in order to evaluate the current framework EU law provides with regard to negotiating and concluding free trade agreements and the influence the TTIP negotiations have had on that level of democratic accountability; then it will evaluate the current EU legislative and non-legislative procedures in light of the theoretical model of democratic accountability, and evaluate the influence regulatory cooperation as envisaged by TTIP may have on the existing level of democratic accountability.
This research is organized as follows. The following chapter will set out what the TTIP agreement entails, and what democratic concerns have arisen due to its proposed horizontal regulatory cooperation. The next chapter will set out the theoretical model of democratic accountability, and how it will be applied in the following analysis. As stated above, the analysis itself is divided into two levels. First, the level of democratic
accountability between the Commission and the EP in the process of negotiating and
and it is assessed - in light of the theory of democratic accountability – whether the
negotiation of TTIP has had an influence on this procedure. This will show to what extent the EP is able to influence the content of the Regulatory Cooperation Chapter of TTIP. The second level of the analysis focusses on the implementation of the Regulatory Cooperation Chapter into the EU legal order. The implementation of international agreements can occur both through legislative acts such as regulations, and non-legislative acts, such as delegated acts and implementing measures. The analysis will focus not on those procedures themselves and on the phase prior to those procedures. I will then discuss to what extent the Regulatory Cooperation Chapter can influence the level of democratic accountability of the Commission to the EP with regard to both legislative and non-legislative acts, and the phase prior to those
procedures.16By discussing democratic accountability on both of these levels, the analysis
provides an overview of the level of democratic accountability with regards to both the content of the Regulatory Cooperation Chapter and its eventual implementation.
2. Regulatory Cooperation under TTIP
The EU and the US are currently negotiating a new free trade agreement, the Transatlantic Trade and Investment Partnership (TTIP). TTIP distinguishes five components relating to regulatory issues, which will each be presented in (one or more) separate chapters of the agreement. These areas are Sanitary and phytosanitary measures (SPS), technical barriers to trade (TBT) – which includes standards and conformity assessment procedures, sectoral annexes (sector specific), regulatory coherence (general), and a ‘framework’ guiding further work on regulatory issues.17 Hence, the main aim of TTIP is the reduction of non-tariff barriers to trade caused by regulatory divergences. The SPS provisions, TBT provisions, and sectoral annexes mostly elaborate the approach previously followed in transatlantic regulatory
cooperation.18 However, TTIP takes a new and ambitious approach to regulatory cooperation,
as it includes a ‘horizontal’ approach to regulatory coherence. Horizontal regulation deals with the most general analytical level of regulatory policy, meaning that it deals with the
coordination of regulatory decision-making processes,19 instead of focussing solely on
16 Based on the Current textual proposal of 21 March 2016 17
TTIP negotiating mandate, par. 25-26
18 Alemanno, The Transatlantic Trade and Investment Partnership and the parliamentary dimension of
regulatory cooperation (Policy Department DG External Policies) European Union (2014) p.25-41
19
R.T. Bull et al, ‘New Approaches to international regulatory cooperation: The challenge of TTIP, TPP, and mega-regional trade agreements’ 78 Law and Contemporary Problems (2015) p.5
specific regulatory cooperation.20 Because the horizontal chapter creates a permanent mechanism for regulatory cooperation, it has been described as “a new model of economic
integration”.21 The Regulatory Cooperation Chapter will allow TTIP to function as a ‘living
agreement’.22
It can be seen as a framework designed to coordinate future bilateral regulatory cooperation between the two parties. Any future sectoral regulatory cooperation will follow the procedures envisaged in the regulatory cooperation chapter of TTIP. This entails that once the parties have agreed on a specific area of convergence, that agreement will become (part of) a sectoral annex.23
Whereas such specific agreements regarding regulatory outcomes will be included in the sectoral annexes, the horizontal chapter will create a permanent framework which will enable the two parties to enter into a permanent dialogue and to coordinate their regulatory approaches on modifications to existing regulation and new proposals. The Regulatory Cooperation Chapter will apply to any regulatory measures of general applicability falling within its scope, including both legislative measures such as regulations and directives, and
non-legislative measures such as delegated acts and implementing measures.24 As stated
above, the scope of the horizontal chapter is rather wide, as it covers to cooperation in “[any area or sector] covered by this agreement that has or is likely to have a significant impact on trade or investment between the Parties, in relation to which regulatory authorities of both
Parties have determined common interest”.25 The general provisions on regulatory
cooperation state that the parties are obliged to keep each other informed on any
developments regarding regulatory measures falling within the scope of the agreement, and they shall aim at identifying opportunities for cooperation.26 Article x.4.2(a) further states that both providing information and the identification of opportunities for cooperation should occur “at the earliest possible stage”, which is then specified in the footnote as meaning before the Commission adopts a formal position on the draft. The specific provisions in article x.5 state that available methods for cooperation include common principles, guidelines and
20 Alemanno, (2014), p.28. A. Meuwese, ‘EU–US horizontal regulatory cooperation: Mutual recognition of
impact assessment?’, In D .Vogel, & J. Swinnen (Eds.), Transatlantic Regulatory Cooperation: The Shifting Roles of the EU, the US and California. (pp. 249-264). Cheltenham: Edward Elgar Publishing, 2011.
21
Alemanno (2015) p.629
22
K. De Gucht, ‘Transatlantic Trade and Investment Partnership (TTIP) – Solving the Regulatory Puzzle’, SPEECH/13/801, (10 October 2013)
23
These sectoral annexes will be legally binding and subject to an ad hoc enforcement mechanism [Alemanno (2014) p.44]
24 Current Proposal RCC, art.x2(b) 25 Current proposal RCC, art.x.3(1) 26
codes of conduct, mutual recognition of equivalence or harmonization of regulatory acts (‘in whole or in part’),and mutual recognition of each other’s implementing tools or regulatory requirements.27 Article x.5.4 also adds that “cooperation at the stage preceding the regulatory process” should also be promoted.
This overview shows that the mechanism created by the regulatory Cooperation Chapter is primarily concerned with identifying opportunities for cooperation, providing information at the earliest possible stage, and the stage preceding the regulatory process, without altering the existing law-making or rule-making procedures of the parties. Moreover, it is explicitly mentioned throughout the chapter that the provisions in this chapter shall be applied in
accordance with the existing domestic regulatory procedures.28 The European Commission
has also explicitly stated that the provisions in this agreement will neither alter the procedures regarding law-making or rule-making as set out in the EU Treaties nor circumvent
parliaments.29 This would mean that regulatory cooperation as envisaged by the current
textual proposal will stay within the constitutional limits of the EU, especially in regard to its current legal framework on law-making and rule-making procedures. However, as Meuwese points out, “the United States and the EU would not bother with an entire chapter on
regulatory coherence, which consists of joint principles and procedures for cooperation, if the provisions were not expected to have effects on rule-making or law-making, on both sides of the Atlantic”.30
This leads to the expectation that regulatory cooperation under TTIP will influence the EU’s legislative and regulatory practices, while it will not necessarily alter its constitutional design. Still, several constitutional concerns have arisen – especially in regard to the regulatory cooperation chapter.
Anne Meuwese states that these concerns related to the regulatory cooperation under TTIP can be divided into two categories. The first category is concerned with regulatory sovereignty, which she describes as referring to the right of sovereign entities to regulate autonomously. The second category is that of democratic legitimacy, which she describes as referring to “the idea that regulations should be promulgated by institutions accountable to
27 Current Proposal RCC, art.x.5(1) 28
The current proposal opens with a reference tot he proposed Preamble which mentions this point; it is referred to in footnote 8 of the current proposal; it is referred to in art.x8.3; it is again explicitly mentioned in the last paragraph of the annex on the institutional set up for implementation.
29
European Commission, ‘TTIP and regulation: An overview’ European Union (2015) p.6-7; Meuwese (2015) p.157; Jančić, p.21
voters”.31
One of the concerns that has arisen in regard to regulatory cooperation under TTIP is that it would cause a ‘race to the bottom’, or that it would place more weight on economic
interests than on other public issues such as consumer or environmental protection.32 The
underlying reasoning is that policy making – even when it does not concern legislative acts – also entails a normative element or, as Gerstetter noted, “striking a balance between different interests”.33
Jančić has noted that one of the approaches taken by the Commission to try to solve this issue is to focus on more transparency and more participation in the form of public
consultations.34 However, the methods of transparency and public consultations with both
stakeholders and civil society alone cannot end the debate on lack of democratic legitimacy, and not only because this then sparks a debate on civil society groups have less resources and therefore less practical influence then other stakeholders.35 Jančić notes in regard to
transparency and consultation with stakeholders that “their roles and mandates are different from those of parliamentary representatives, whose involvement is scarcely elaborated [in TTIP]. Legislators are elected and typically uphold the public interest, which is wider than the interest of stakeholders”.36
He also states that “enhanced regulatory cooperation is being put in place without providing for adequate institutional safeguards that guarantee the
involvement of directly elected officials in the choices that inform normative approaches to regulation”.37
There is no explicitly mentioned role for parliamentary involvement to be found in the current TTIP textual proposal. Alemanno has also noted that while TTIPs regulatory chapter will bring together regulators, it is not concerned with bringing together legislators or parliamentarians.38 This may eventually lead to a lesser degree of parliamentary oversight of the executive branch of the EU. This analysis builds on the concerns that regulatory
cooperation as envisaged by TTIP may influence the democratic legitimacy of the EU, and especially the concern that too much power may be placed with the Commission at the expense of the EP. In order to narrow the scope of the research, the model of ‘democratic accountability’ will be used to analyse the relation between the Commission and the EP; this theoretical model will be set out in the following chapter.
31 Meuwese (2015), 32 Gerstetter, p.5 33 Gerstetter, p.6; cf. Brands
34 Jančić, p.19; Current proposal RCC art. x5.2; art. x6 35 Gerstetter, p.6; Gerstetter, p.32 36 Jančić, p.19 37 Jančić, p.22 38 Alemanno (2015), p.635-636
3. Theoretical Model of Democratic Accountability
As discussed in the previous chapter, the concerns regarding the Regulatory Chapter of TTIP are primarily focussed on the concern that it will place to much power with the executive branch, the Commission, at the expense of the EP. Whereas the current textual proposal includes democratic principles such as transparency and public participation, it does not explicitly provide for parliamentary involvement. As discussed above, the current textual proposal states that TTIP will not alter the constitutional design of the EU. Therefore, in order to assess whether the regulatory Cooperation Chapter can influence the relation between the Commission and the EP, an added theoretical lens is needed. The theory of accountability is especially suited for analysing the concerns regarding the interinstitutional relation between the EP and the Commission; moreover, accountability plays an important role in the
functioning of democratic forms of government. 39 Mark Bovens states that “accountability
matters from a democratic perspective as it makes it possible to call to account in a democratic fashion those holding public office. […] Hence, public accountability is an essential condition for the democratic process providing voters and their representatives with the information needed for judging the propriety and effectiveness of the conduct of the
government”.40
In order to analyse the democratic concerns regarding TTIP’s horizontal chapter, the theory of ‘democratic accountability’ will be used.
Accountability is defined as a mechanism in which an actor can be held to account by a forum.41 Bovens defines accountability as “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can
pose questions and pass judgment, and the actor may face consequences”.42
This definition of accountability contains three essential elements. First of all, there should be an actor, either an official or an institution, who provides information about his conduct to a forum. Secondly, there should be an explanation and a justification of the conduct; this should be directed specifically to the forum, and should follow from a (sense of) obligation. Thirdly, this should be followed by the possibility of debate and judgment by the forum; this judgment should be followed by the possibility of sanctions or rewards. Brandsma takes a comparable stand,
dividing views on accountability as either ‘rendering account’ or ‘holding to account’.43
‘Rendering account’ would include providing information and justification of the conduct.
39 Bovens, p.104 40 Bovens, p.113 41 Bovens, p.106 42 Bovens, p.107 43 Brandsma, p.53
‘Holding to account’ does not only include providing information and justification, but adds the third element, that of a relation to a third party with the capacity to impose sanctions.44 I will approach the concept of accountability as ‘holding to account’, which includes Bovens’ three essential elements of providing information, justification, and judgment, where
judgment includes the possibility of providing sanctions. As opposed to ‘control’,
‘accountability’ functions primarily as an ex post mechanism.45
It therefore excludes the concepts of ‘transparency’ and ‘participation’.46
The concepts of transparency and
participation also fall beyond the scope of this study as they are aimed at the general public, whereas this analysis will focus on a specific forum, the EP.
The theoretical model of accountability is based on the agent-principal framework,
which also occurs in literature on delegation.47 This framework shows the relationship
between those who delegate powers (the principals), and those to whom powers are delegated (the agents). The chain of delegation can be summarized as beginning with voters, the
ultimate principals, who delegate powers to elected representatives in Parliament – who then act as agents. Parliament then, acting as a principal, further delegates power to the executive branch. The chain of delegation runs all the way from voters to civil servants.48 The inherent risk of delegation is that those who delegate may lose power or control.49 To prevent or limit this ‘agency loss’ which may occur in any mechanism of delegation, democratic forms of
government therefore need a mechanism of accountability.50 The mechanism of accountability
functions in the opposite direction of delegation, from agent to principal.51 The goal of the mechanism of accountability is to keep decision-makers under the control of those who have delegated powers to them.
In this analysis the Commission will function as the ‘actor’ since the Commission, as the executive branch, is responsible for the external representation of the EU52 and conducts
the negotiations of the agreement.53 Secondly, the Commission plays a large role in both
44 Bovens, p.53 45
Lupia, pp.47-51; Brandsma, p.63; Bovens, p.
46 Bovens, p.107 47
Brandsma, p.23
48
Brandsma, p.61; Muller et al., ‘Parliamentary Democracy: Promise and Problems’, in Muller et al. (eds).
49
A. Lupia, ‘Delegation and its Perils’, in Muller et al. (eds); Muller et al., p.5; K. Strom, ‘Parliamentary Democracy and Delegation’, in Muller et al. (eds.), p.59
50
Muller et al, p.5, Brandsma, p.62; Strom, p.55.
51 Brandsma, p.61; Lupia, pp.36-37. 52 Art. 17.1 TEU
53
adopting the non-legislative measures needed to implement the eventual agreement54 and in
the drafting of legislative measures.55 Within the EU, the European Commission is primarily
accountable to the European Parliament.56 Other institutions such as the Council, the European Court of Justice, the ombudsman, and a series of ad hoc bodies also play a part in
the mechanism of control regarding the Commission.57 When taking the constitutional view of
accountability, which is concerned with preventing concentrations of power by means of a system of checks and balances, these other bodies and institutions would also be relevant. However, this analysis will take a ‘democratic’ view, viewing accountability as ‘a democratic
means to monitor and control government’.58
The democratic view of accountability is based on the traditional model of accountability following the chain of delegation; this traditional model is also referred to as the ‘vertical’ model.59
As stated above, accountability is defined as a mechanism in which an actor can be held to account by a forum. In the traditional model, principal who has delegated power functions as the ‘forum’, and the agent to whom power has been delegated functions as the ‘actor’. In the abovementioned agent-principal model, it is the Parliament who delegates power to the executive branch. Bodies such as the ombudsman, the ECJ, and ad hoc bodies do not fit into the traditional agent-principal model of
accountability.60 Furthermore, within the view of democratic accountability the forum needs
to be democratically elected, and it needs to be able to impose formal sanctions on the agent. As the European Parliament is directly elected and since it may vote on a motion of censure of the Commission, the EP is the most suitable forum within the theory of democratic
accountability.61 The abovementioned forums of horizontal or diagonal accountability are not
democratically elected and/or cannot impose formal sanctions; both of these aspects are needed for democratic accountability. Accountability stemming from horizontal or diagonal forums, such as the ombudsman, civil society or the media, can only enhance democratic control if their findings are picked up by a democratically elected parliament, with the ability to impose some form of formal sanctions.
I will apply the abovementioned theory of ‘democratic accountability’ to the
relationship between the Commission and the EP. In this analysis, the Commission functions
54 Art. 290 TFEU; art. 291 TFEU; art. 207.1 TFEU 55
Art. 294.1 TFEU
56
Art. 14.1 TEU; art.17.7 TEU; art.17.8 TEU; art.234 TFEU
57 Art.228 TFEU; art. 246TFEU [cf. Bovens] 58
Bovens, 113-114
59
[Cf. Brandsma; Bovens]
60 Bovens, 116; Muller et al. 61
as the actor and the EP functions as the forum. This analysis will follow Bovens’ model of accountability, and discuss all three of its essential elements: whether the Commission provides information to the EP ; whether the Commission (is obligated to) provide an explanation and justification of its conduct to the EP; and whether the EP is provided the opportunity for debate and judgment of the conduct of the Commission, which should include the possibility of providing formal or informal sanctions or rewards. In order to fully analyse the possible effects of the Regulatory Cooperation chapter of TTIP on the level of democratic accountability between the Commission and the EP, this analysis will be divided into two levels. Each of these two levels will analyse a different conduct. Firstly, the conduct of the negotiation and conclusion of international agreements under the Common Commercial Policy (CCP) will be analysed. The extent of democratic accountability of the Commission to the EP in this regard is decisive for the extent to which the EP will be able to influence the content of the international agreement. The second level of the analysis will analyse the conduct of the implementation of the agreement into the EU legal order. It will set out the current legal basis and procedures for adopting the necessary implementing measures for
international agreements under the CCP.62 This chapter aims to analyse the extent of
democratic accountability between the commission and the EP in the daily functioning of the Regulatory Cooperation Chapter of TTIP, based on its current textual proposal.
This chapter will analyse the conduct of the negotiation and conclusion of TTIP. It will discuss the legal basis in the Treaty of Lisbon and relevant secondary law for the negotiation and conclusion of international agreements under the Common Commercial
Policy (CCP), 63 focussing on the relation between the Commission and the EP. This chapter
will be divided into three sections, based on the three elements of the theory of democratic accountability. The first section will analyse to what extent the Commission should (formally)
provide the EP with information regarding the negotiation of international agreements,64 and
to what extent the TTIP negotiations have influenced the practical application and interpretation of these obligations. The second section discusses to what extent the
Commission is obliged to provide an explanation and justification of its conduct to the EP; that is, to what extent the Commission justifies its choices regarding the negotiation of international agreements, and to what extent it does so in consultation with the EP. It will
62 Art. 207(2) TFEU; T. Muller-Ibold, p.154 63
Art. 207(3)– (5) TFEU; art.218 TFEU; T. Muller-Ibold, ‘Common Commercial Policy After Lisbon: The European Union’s Dependence on Secondary Legislation’, (in Bungenberg and Hermann, eds.) European Yearbook of International Economic Law: Common Commercial Policy after Lisbon, Springer (2013) p. 145-161
64
discuss both the obligations arising from EU law,65 and the influence of TTIP on its practical application and interpretation. The third element discusses the possibility for the EP to form a judgment which can be followed by sanctions or rewards, and will therefore focus on the possibility of the EP to reject or consent to an agreement.66 The chapter will conclude with an evaluation of the extent to which all three elements of democratic accountability are present in the process of the negotiation and conclusion of the agreement. The extent to which all three elements are present is decisive for the extent to which the Commission can be said to be democratically accountable to the EP. The practical relevance thereof is that the higher the level of democratic accountability is, the more the EP would be able to influence the content of any concluded treaty.
The next chapter will discuss the implementation of the Regulatory Cooperation Chapter of TTIP into the EU legal order. The level of democratic accountability in this regard is decisive for the extent to which the EP will be involved in the daily functioning of TTIP’s Regulatory Cooperation Chapter. The role of the European Parliament is first and foremost dependent on the procedure followed for implementing the provisions of the Agreement. This chapter will first set out the relevant procedures, including the phase prior to the legislative procedure, the legislative procedure, and the non-legislative procedures pursuant to article 290 and 291 TFEU. I will assess the level of democratic accountability between the Commission and the EP in these procedures based on the wording of the relevant EU law. I will then analyse to what extent the Regulatory Cooperation Chapter may influence the level of democratic accountability in the relation between the Commission and the European
Parliament. As TTIP is still being negotiated, the analysis will be based on the current textual proposal of the EU. The analysis of the regulatory chapter will focus primarily on the
institutional set up it will create, and on ex ante regulatory cooperation. This chapter will analyse whether these two mechanisms may have a negative effect on the level of democratic accountability between the Commission and the EP.
65 Art.207(3) TFEU; Framework Agreement 2010 66
4. The Negotiation and Conclusion of Agreements Under the CCP
The Common Commercial Policy (CCP) refers to the Union’s external trade policy as defined by the treaty of Lisbon. The CCP is one of the areas in which the EU has exclusive
competence.67 When an international agreement is concluded in an area of exclusive
competence, the EU is competent to conclude the agreement without requiring the consent of
the Member States.68 This means that the agreement then only needs the consent of the EP,
without requiring the consent of the national parliaments. The negotiating directive for TTIP states that “the agreement will exclusively contain provisions on trade and trade-related areas applicable between the Parties,”69
which would entail that the agreement falls within the
Common Commercial Policy in its entirety.70 Yet the European Commissioner for Trade,
Cecilia Malmstrom, has stated that TTIP will probably become a mixed agreement.71 A mixed
agreement is an agreement that is concluded by both the EU and the Member States because
some of its provisions would fall under the Member States’ competences72 and which would
therefore also require the Member States’ consent and brings in national parliaments. While this could be an interesting development from a broader viewpoint of democratic legitimacy, it falls beyond the scope of this research. This analysis will focus on the level of democratic accountability between the Commission and the EP in the negotiation and conclusion of international agreements under the CCP, and TTIP’s possible influence thereon. The practice of negotiating and concluding international agreements has in the past shown to be able to influence the formal legal procedures. In regard to previous treaty amendments such as the Treaty of Lisbon, it has been noted that changes that had occurred in practice had been codified causing the EP to gain more formal power. Whereas the Union has had exclusive
competence in regard to international trade policy since the Treaty of Rome;73 the EP has only
67
Art.3(1)e TFEU
68
Art. 2(1) TFEU; art 3(1) e TFEU; art.3(2) TFEU
69 Council Directive 11103/13 of 17 June 2013 for the Negotiation on the Transatlantic Trade and Investment
Partnership between the European Union and the United States of America (Declassified 9 October 2014), par. 1
70 Art. 206 TFEU; [meaning that it falls within the EU’s exclusive competences]
71 European Parliament (DG External Policies), ‘Highlights from the European Parliament hearing of Cecilia
Malmstrom, European Commissioner for trade’ European Union (2014); C. Ziedler, ‘Malmström: We Can Finish TTIP during the Obama Administration’, (28 July 2015, updated: 16 November 2015); European Commission (DG Trade), ‘Inside TTIP: An overview and chapter-by-chapter guide in plain English’ European Union (2015)
72
C. Brown, ‘Changes in the Common Commercial Policy of the European Union After the Entry into Force of the Treaty of Lisbon: A Practitioner’s Perspective’, in Bungenberg M. and Herrmann C. (eds), European Yearbook of International Economic Law: Common Commercial Policy after Lisbon, Springer (2013), pp.163-182
73
had a formal role in these proceedings since the Treaty of Lisbon.74 These changes have also been described as mainly being codifications of changes which had already occurred in practice.75 Therefore, this chapter will not only discuss the changes which occurred in the practice of the TTIP negotiations, but also compare these changes to other examples which have occurred since the Treaty of Lisbon. This may show whether these changes could be argued to be the beginning of structural changes.
4.1 The first element of Democratic Accountability: Information
4.1.1 Legal Framework
The specific procedure for the negotiation and conclusion of international treaties falling within the CCP is based on article 207 (3) –(5)TFEU. Article 207(3) states that article 218 shall apply “subject to the special provisions of this article”.76 Article 207 (3) further states that
“the Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations”.77
The general article on the negotiation and conclusion of international agreements states that the “European Parliament shall be Immediately and fully informed at all stages of the procedure”.78
The procedures of informing the EP are set out more specifically in the
Framework agreement between the Commission and the EP of 2010.79 The Framework
Agreement states that:
“In the case of international agreements the conclusion of which requires Parliament’s consent, the Commission shall provide to Parliament during the negotiation process all relevant information that it also provides to the Council (or to the special committee appointed by the Council). This shall include draft amendments to adopted negotiating
74
Van den Putten et al., p.53
75 Van den Putten et al., p.52-54; Eckes, p.19 76
Art. 207(3) TFEU
77 Art. 207(3) TFEU 78 Art.218(10) TFEU 79
Framework agreement on the relationship between the European Parliament and the European Commission. Paragraph 23 et seq., OJ 2010, L-304/47
directives, draft negotiating texts, agreed articles, the agreed date for initialling the agreement and the text of the agreement to be initialled. The Commission shall also transmit to Parliament, as it does to the Council (or to the special committee appointed by the Council) any relevant documents received from third parties, subject to the originator’s consent. The Commission shall keep the responsible Parliamentary committee informed about developments in the negotiations and, in particular, explain
how Parliament’s views have been taken into account”.80
The Treaty provision states that the Commission shall ‘report regularly’ to the EP and the Council. Krajewski points out that in the obligation to ‘report regularly’, or to provide information, the Council and the EP are mentioned on equal footing, and that unequal treatment between the two in regard of providing information would therefore be contrary to the TFEU.81 The text of the Framework agreement explicitly reiterates that the principle of equal treatment between the Council and the EP in regard to the information they are provided should be upheld.82
The framework agreement actually goes beyond the obligation to ‘report’, as the provision of information also includes the forwarding of documents such as draft amendments to adopted negotiating directives, draft negotiating texts, agreed articles, and relevant documents
received from third parties. Eckes points out that where the Framework agreement goes beyond the explicitly mentioned obligation in the Treaty, it is still considered legally binding
as it can be enforced before the Court of Justice of the European Union(CJEU).83 Eckes
points out that the CJEU has previously based the binding force of interinstitutional agreements on the intention of the parties in combination with the duty of sincere cooperation.84
The abovementioned provision on the information provided by the Commission to the EP
only mentions one limitation.85 The Commission will only forward documents it received
from a third party to the EP if the originator (third party) consents, meaning that the
80
Framework Agreement, European Parliament and Commission, 2010, OJ L304/61 (Annex II, par.5)
81Markus Krajewski, ‘New functions and new powers for the European Parliament: Assessing the
changes of the Common Commercial Policy from the perspective of democratic legitimacy’, (in Bungenberg and Hermann, eds.) The Common Commercial Policy After Lisbon (Springer, 2013) p.72; art.207(3) TFEU; Framework agreement EP-EC 2010
82 Framework Agreement 2010, par.9; Framework Agreement 2010, annex II, par.5 83
C. Eckes, How the European Parliament’s participation in international relations affects the deep tissue of the EU’s power structure (working paper) , ACELG 2014, p.16
84 Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469, 49-50; art. 4(3) TEU 85
Commission will not be able to forward documents (co-)authored by the USA to the EP without the consent of the USA. This rule entails that the third party can choose to keep certain information confidential. The Commission may also choose to keep certain
documents secret for strategic reasons.86 Also with regard to confidential information, there
can be no discrimination between the Council and the EP.87 In order to safeguard this
confidentiality, the Commission may choose to present information on ongoing negotiations to the Committee on International Trade of the European Parliament (INTA) during ‘in-camera’ sessions, which are not open to the public.88
INTA prepares the positions to be adopted in the plenary sessions of the European Parliament regarding the negotiation and conclusion of trade agreements.89 Viewed from the theory of democratic accountability, it is not necessarily relevant whether these ‘in camera’ sessions inform the public – although it can be relevant if and how the other Members and Committees of the European Parliament are informed.
4.1.2 Possible Influence of TTIP on the application of the requirement to provide Information With regard to providing information to the EP, the legal framework provided for in EU law is already quite extensive.90 However, as can already be seen from previous trade
negotiations, the EP can manage to influence the extent to which it is involved in the
negotiations, also with regard to the amount of information it is provided by the Commission. An example can be found in the first TFTP agreement (SWIFT), which the EP rejected partially due to the lack of information it was provided.91 The EP later consented to the second TFTP agreement, which had only incorporated some slight changes; this shows that at least part of the reason to reject the first version was the lack of information provided to the
EP.92 The ACTA agreement is another example which the EP had rejected, in this case
partially due to the public controversy on the agreement and partially due to the lack of information it was provided.93 In the resolution that stated the reasons for rejecting the
86
Framework Agreement 2010, Annex II
87Krajewski, p.72 88
Framework Agreement EP-Commission (2010)
89 EP Rules of Procedure, 0J 2011 L116, 1, 90, Annex VII (III); Alemanno (2014) p.48 90 Cf. Krajewski, p.82
91 Eckes, p.8
92 Meissner, ‘Democratizing EU External Relations: The European Parliament’s Informal Role in SWIFT,
ACTA, and TTIP’, European Foreign Affairs Review (2016) vol.21.2, p.274; Eckes, p.8-10;
agreement, the EP had explicitly mentioned the lack of adequate and timely information.94 The negotiation mandate had also not been shared with the EP, which Sophie in ‘t Veld had
also challenged before the CJEU.95 The Commission eventually, after the EP had already
rejected the agreement, did make the mandate public.96 It has been noted that the first TFTP agreement had been negotiated before the Treaty of Lisbon had entered into force, and the ACTA agreement had in part been negotiated before its entry into force.97 Part of the reason for the improved role of the EP can therefore be said to be the entry into force of the Lisbon Treaty, although the actions of the EP itself can also be said to have been of influence.98
Regarding the TTIP negotiations, the EP, the Ombudsman and civil society groups had pressured the Commission for more transparency, which led to the Commission making the negotiation mandate and some of its negotiation texts public.99 More important to the current analysis, however, is that the EP then further pressured the Commission in regard to the information it shared with the EP.100 In November of 2014, the President of the
Commission issued a communication on the TTIP negotiations to the Commission, which included provisions on classifying less negotiation texts and providing access to (some of the) negotiation texts to all MEPs.101 Some of the negotiation texts are now public, meaning that they are accessible to everyone, but there are several other categories. Limited documents are accessible to those who are working on the specific issues (INTA), restricted documents are accessible to the chair and vice-chair of the committee, coordinators of the political groups, and the rapporteurs; and the documents authored or co-authored by the US are still
classified.102
In regard to the TTIP negotiation documents, the Commission has agreed to declassify more documents and to make more documents accessible to MEP’s, all members of the EP’s
monitoring group can access documents that the INTA committee receives, 103 all MEP’s can
consult classified documents in a ‘reading room’, and the Commission has stated that it will
94 Eckes, p.11
95 Case T-301/10 Sophie in t veld v Commission, (2013); Eckes, p.11; Meissner, p.275 96 Meissner, p. 276
97
Eckes, p.11-12, Meissner, p. 275
98 Eckes, p.11-12
99 Wessel and takacs, p.20; Meissner, p.280 [ However,this is only indirectly influences the amount of
information the EP is provided, and therefore less relevant to the overall argument.
100
Wessel and Takacs, p.20; European Parliament, lack of transparency in TTIP- a case for the ECJ? Reading Room arrangement may contradict the EU Treaties, 10 july 2014
101 Meissner, p.281 102
Meissner, p.282
103
set up a database through which all MEPs could access limited documents.104 Also, the EP is now briefed by the Commission before and every negation round, whereas in previous trade negotiations these briefings were less frequent.105 While these briefings are in camera, and do not include all MEPs, these INTA meetings also include the Chairs and specific rapporteurs of
eleven other European Parliament committees.106 Furthermore, the INTA also holds in
camera briefings with the Commission’s Director General for Trade, and it is in structured dialogue with the EU trade Commissioner. The remaining problem in regard to the provision of information on the TTIP negotiations is that some texts - especially those texts co-authored by the US - are still classified. Other than that, what is most striking is that the EP has never been so well informed as it is in the TTIP negotiations.107
4.2 The Second element of Democratic Accountability: Justification and Explanation
4.2.1 Legal Framework
Krajewski points out that while article 207(3) TFEU provides for equality between the Council and the EP with regard to the information the Commission provides them, the
obligation for the Commission to conduct the negotiation ‘in consultation with’ the committee established by the Council is not extended to the EP.108 He further points out that the
Commission “is only responsible to the Council in the form of the commercial policy commission and only obliged vis-à-vis the Council to consider its position”.109 There is therefore no formal obligation for the Commission to provide a justification or explanation of its conduct to the EP, meaning the second essential element of democratic accountability seems to be missing – at least in the TFEU itself. In this regard it is also relevant that the EP has no formal right of amendment. Based on the wording of the Treaty, the EP has no right to
influence the substance of an international agreement.110 The Framework agreement, on the
other hand, states that the Commission shall keep relevant committee of the EP “informed about developments in the negotiations and, in particular, explain how Parliament’s views
104 Meissner, 282 105 Alemanno (2014), p.48; Meissner, p.282 106 Alemanno (2014), p.48 107 Meissner, p.282 108
Krajewski, p.73; Art.207(3) TFEU
109 Krajewski, p.74 110
have been taken into account”.111As was the case with the element of ‘ providing
information’, with regard to the element of ‘explanation and justification’ the Commission has chosen to do more than the treaty provisions strictly entail. The Commission will in this case voluntarily provide explanation and justification of its conduct to the EP, thereby adding to the extent of its democratic accountability. It has been argued that the extent of the
explanation and justification of its conduct the Commission is willing to provide is heavily influenced by the requirement of consent of the EP for the conclusion of the agreement.112 4.2.2 Possible Influence of TTIP
A first practical issue in regard to the possibility of explanation or justification being provided, is that sufficient time is needed for a dialogue to occur. This is also explicitly mentioned in paragraph 24 of the Framework Agreement of 2010, which also reiterates that the Commission should take the EP’s views into account. However, one of the problems which has occurred in previous trade negotiations was that the Commission had provided the EP with information at a moment which did not allow for sufficient time for the EP to draft an adequate response, which therefore did not allow for sufficient time for a dialogue to occur during the negotiations. An example thereof was the negotiation of the first TFTP agreement, where timing of the formal submission of the text of the agreement left the EP with only one
week to draft a response.113 A more substantial element is whether the positions expressed by
the EP on the content of an agreement can be taken into account during the negotiations. The EP has in the past used its consent authority as leverage on the basis of which it has developed a tradition of issuing recommendations which must be taken into account before the
conclusion of an international agreement.114 While the EP has no right of amendment, it has in
practice used its possibility to withhold consent as leverage to be able to influence the content of international agreements. Regarding the second TFTP agreement, the EP issued a
recommendation with regard to the negotiation mandate to the Council, and it issued a resolution regarding the content of the agreement.115 Whereas the EP had rejected the first agreement, it consented to the second agreement – even though only some slight changes
regarding the EP’s position had been incorporated.116
With regard to the ACTA agreement,
111
Framework Agreement, European Parliament and Commission, 2010, OJ L304 61. [emphasis added]
112
Art. 218(a)V TFEU; art.207(2) TFEU
113 Eckes, p.9; Eckes notes that this also played a part in the case of T-529/09 Sophie in t Veld v Council 2012
ECR II-0000 114 Alemanno 2014, p.48 115 Eckes, p.10; Meissner, p.273 116 Meissner, p.274
the EP did not issue any recommendations regarding the content of the provisions, although it
did eventually refused to give its consent.117 The case of the PNR-agreement has been
mentioned as an example of the EP being more involved in the negotiation.118 Alemanno, on
the other hand, notes that “both the SWIFT and PNR episodes have largely been interpreted as instances in which the role of the Parliament has been of taker’ as opposed to ‘norm-maker’”.119
Whereas there have been improvements in this regard in the period since the entry into force of the Lisbon Treaty, there clearly is still room for improvement.
With regard to the TTIP negotiations, the European Parliament had issued a resolution
on 23 May 2013, before the Council had authorized the negotiation mandate.120 The EP issued
this resolution in order to be able to influence the contents of the mandate, and the
Commission took the positions of the EP on the mandate into account. Meissner argues that this successful influence of the negotiation mandate was in part due to the fact that the Commission did not want to risk a refusal of consent by the EP, and in part because the EP
had been able to team up with several Member States on the positions it had taken.121 The EP
has also issued a recommendation on 8 July 2015, in which it communicated substantial
provisions it wanted to be included in the eventual TTIP agreement.122 This recommendation
included provisions relating to the agreement’s scope, market access, and rules on labour
rights, health and safety standards, environmental protection and sustainable development.123
In this resolution, the EP also rejected the idea of ISDS, an issue which had already attracted
much public debate.124 The Commission responded by replacing this private arbitration
mechanism with an investment court system in its new textual proposal, which can be considered as a partial success.125 It also included provisions relating to regulatory cooperation, opposing an agreement in too diverging areas such as GMOs and the authorization of chemicals.126 In regard to horizontal regulatory cooperation, the EP
reiterated that the “established regulatory systems [and] the European Parliament’s role within the EU’s decision-making process and its democratic scrutiny over EU regulatory processes
117 Meissner, p.279 118 Eckes, p.12-15 119 Alemanno, p. 49 120
Wessel and Takacs, p.19; Meissner, p.280
121
Meissner, p.280-281
122
European Parliament, European Parliament recommendation of 8 July 2015 Containing the European Parliament’s recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) [Hereinafter EP Resolution]
123
Meissner, p.284
124 EP Resolution 125
Wessel and Takács, p.20; Jančić, p.18
[be respected fully]”. It also urged the Commission to “specify the role, the composition and the legal status of the Regulatory Cooperation Body, taking into consideration that any direct and compulsory application of its recommendations would imply a breach of the law-making procedures laid down in the Treaties”.127
On the basis of article 205 TFEU in conjunction with article 21 TEU, the EP is able to formulate opinions regarding general public objectives other than economic or trade related objectives. The EP makes use of this possibility, and it has been stated that the EP’s involvement in the Union’s trade policy has altered the character
of the Common Commercial Policy.128 The EP has again made use of this possibility in its
resolution of 8 July 2015.
This section has shown that whereas the Treaty of Lisbon does not oblige the Commission to consult with the EP on the negotiation of international agreements, the Commission had agreed to include this obligation in the Framework agreement of 2010.Even though the EP does not have a right of amendment, it has been able to influence the content of international agreements by using its consent authority as leverage.
The EP had previously issued a resolution on a negotiation mandate of the second TFTP agreement as a strategy to influence its content,129 although it eventually only achieved some slight changes compared to the first version of that agreement. It had also issued a resolution in order to influence the content of the TTIP negotiation mandate, where it was successful partially due to the fact that it could team up with some Member States on the issues.
Although these can arguably only be considered as partial successes, it remains remarkable as the EP has no formal say in the negotiation mandates of international agreements. When comparing the previous textual proposal to the current textual proposal, it can also to some extent be concluded that the Commission has taken account of the views expressed by the EP in its resolution of 8 July 2015 .
4.3 The third element of Democratic Accountability: Judgment/Sanctions
4.3.1 Legal Framework
Since article 207 does not contain any specific provision concerning the conclusion of international agreements and the role of the EP therein, article 218 TFEU applies. According to article 218 (a) V, the consent of the EP is required for the conclusion of agreements which
127
EP Resolution, par.2(c)IX ( the RCB will be further discussed in chapter 5.2)
128 Wessel and takacs, p.19; van den Putten, pp.12-14 129
cover a field to which the ordinary legislative procedure applies. Article 207 (2) states that the ordinary legislative procedure applies to “measures defining the framework for implementing
the common commercial policy”. This includes international agreements in this area.130
The EP only has the power to consent to or reject an international agreement; consent is reached by a majority of the votes cast.131 Formally, the EP can only decide on a completed text, without being able to influence its contents or propose amendments.
Krajewski argues that since the national parliaments of the member States are all part of a parliamentary system of government, a rejection of an international agreement negotiated by
the government would be highly unlikely as it would amount to a vote of no confidence.132 He
continues by arguing that as the institutional structure of the EU is inherently different compared to that of systems of parliamentary governments, the EP is not necessarily
politically bound to the Commission. Krajewski argues that this is why a refusal of consent to an international agreement by the EP is less unlikely,133 which he illustrates with examples where the EP has (temporarily) refused to consent to international agreements.134
4.3.2 Possible Influence of TTIP
The EP’s consent authority has been described as the ultimate formal instrument of the EP to influence international agreements.135 So far, the EP has tried to assert its right to consent on several occasions during the TTIP negotiations, mostly in order to pressure the Commission to seriously consider its views.136 At this moment, it is uncertain whether the EP will consent to the TTIP or whether it will withhold its consent. However, as noted above, the EP has been informed extensively during the negotiations; lack of information will therefore not be a reason for the EP to withhold its consent – as has been the case in previous trade agreements. The Commission has so far also tried to incorporate the EP’s views into its negotiating text, starting with the negotiation mandate and up to the current negotiation text. Besides the influence of the extent of the information provided to the EP, it has also been argued that the extent to which the views of the EP are incorporated into the agreement has an influence on the likelihood of the EP giving its consent to an agreement.137 This relates to the second element of democratic accountability; where the EP’s views are not or insufficiently
130
Krajewski, p.74-75;
131 EP Rules of Procedure, 0J 2011 L116, 1, 90(7) and (90) 9. 132 Krajewski, p.82
133
Krajewski, pp.75- 76; Krajewski p. 82
134
Krajewski, p.76; cf. Meissner; cf. van den Putten et al.
135
Meissner, 286
136 Meissner, 283 137
incorporated, it can be said to have more legitimacy in refusing consent. When the extent to which the first two elements of democratic accountability are is higher, the chance of the EP applying ‘sanctions’, i.e. refusing to give its consent to the agreement, will become lower.
4.4 Preliminary Conclusion
The abovementioned examples show that the three elements of democratic accountability are interrelated. In order for the mechanism of democratic accountability to function properly, all three elements need to be present. The EP needs to be provided with sufficient information to be able to formulate a view on the proposed agreement. This information also needs to be provided in time, leaving room for a dialogue between the Commission and the EP. The Commission needs be left with sufficient time to take the EP’s views into account, and to explain or justify the instances where they chose not to follow the EP’s views. The examples discussed above have also shown that the EP is more inclined to refuse consent when it has not been informed properly or when its views have not (sufficiently) been taken into account. When both of these elements are sufficiently present, the chances of the EP applying
‘rewards’ instead of ‘sanctions’, i.e. consenting to the agreement, increase. It has been argued before that when the EP is not sufficiently included in the negotiations, it can legitimately oppose the decisions of the other institutions.138 When the EP has had the chance to communicate its position on the agreement, and the Commission has taken its views into account, the EP would have lost some of its legitimacy in opposing the agreement after the negotiations. The abovementioned examples have also shown that the EP has primarily refused to give its consent to trade agreements when it had not sufficiently been informed or consulted.
With regard to the Treaty provisions, we have seen that since the entry into force of
Lisbon, the EP has gained the authority to consent to or reject international agreements and its right of information had been increased. It has been noted that previous Treaty amendments in regard to the EP’s role over international agreements have so far always increased the EP’s powers, and they have often been reflections of changes which had already occurred in practice.139 The same has been said on the increased right of information of the EP in the Lisbon Treaty, which has been described as mainly codifying the EP’s rights which it had
138 Eckes, p.5; Krajewski, p.74; Alemanno (2014), p.49 139
acquired due to the ‘Luns-Westerterp procedure’.140
This procedure, which had already been developed in 1982 entailed that the EP was informed not only on negotiations of association agreements and trade agreements141, but also at the stage of conclusion of almost any
international agreement. It was not until the Treaty of Lisbon that this practice had been codified in the Treaty, but this example does show that changes that occur in practice can in the long run be codified in the Treaty.
The obligation for the Commission to inform the EP is laid down in Treaty provisions, and the Commission has agreed to further extend the amount of information it provides the EP in the 2010 Framework Agreement. In those cases where the EP was insufficiently informed on the negotiation of international agreements, it has used its consent authority to enforce its right to be informed in future proceedings, and it has even brought some cases before the ECJ. In the case of TTIP, we have seen that the EP is being informed more thoroughly than in any other negotiation procedure so far. There had already been an ongoing trend of the
Commission informing the EP more extensively in the previous years, which may have gained more momentum during the TTIP negotiations – especially in regard to the
Commission making more documents accessible to MEP’s. On the other hand, some of the specific changes that have occurred during these negotiations, such as the more regular briefings of the EP, and the ‘reading room’-arrangements may not necessarily be taken as indications of a structural change.
With regard to the justification or explanation towards the EP, no formal basis can be found in the Treaties. The EP also does not have a formal right of amendment. In practice, however, the EP has leveraged its consent authority to gain influence on the content of agreements, so that the Commission does take the EP’s views into account during
negotiations. This had also been shown in the abovementioned examples of TFTP agreement and the PNR agreement – although it did not occur during the negotiations of the ACTA agreement. Also in regard to the TTIP negotiations, the EP has issued a resolution with certain provisions it wanted to see included in an eventual agreement. The Commission has amended its previous textual proposal, and the current textual proposal reflects some of the views proposed by the EP. The EP is therefore in practice able to influence the content of the agreement to some extent. Moreover, the EP has also issued a resolution before the authorization of the negotiation mandate – an issue over which it has no formal say.
During previous trade negotiations, such as the TFTP or ACTA, the EP had already
140 Van den Putten, p.52-54 141
