Public Disquiet and Treaty-making

It is not only Brexit, the Eurozone crisis, its relations with Russia or the election of a decidedly different leader in the United States that give EU decision-makers and lawyers sleepless nights. The public disquiet that the Union's treaty-making activity has caused in different contexts and in different Member States raise considerable political and legal problems for both the European Union and national capitals. There have been various cases that illustrate this state of affairs. The signing and provisional application of the Comprehensive Economic and Trade Agreement (CETA) that the EU negotiated with Canada was nearly derailed by the Walloon Parliament in October 2016. Its signing was by no means a foregone conclusion in Germany and Austria either. In Germany, the Federal Constitutional Court was asked to issue an injunction against the provisional application of the Agreement. It declined in a judgment rendered in October 2016. Following a non-binding referendum on 6 April 2016, the Netherlands has not ratified the Association Agreement that the EU negotiated with Ukraine. As for the now moribund Transatlantic Trade and Investment Partnership (TTIP) between the EU and the United States, its negotiation has been marred by criticism and controversy. These developments have implications for the Union's role on the international scene. CETA, for instance, is one of the most advanced treaties that the EU has negotiated with a third country. Uncertainty about the fate of the deals that it secures undermines the EU's negotiating power and raises questions about its effectiveness as an international actor. The opportunity for testing in Member States the signing and application of treaties negotiated by the EU is provided on the basis of legal and political considerations. If the content of the treaty falls within the shared competence of the EU and the Member States, it must be signed and ratified by every Member State in accordance with national constitutional rules. Whether an international treaty should be an EU-only or a mixed treaty is often a matter of legal controversy. This is because this issue pertains to the politically sensitive question about the division of competence in international economic relations between the EU and the Member States. The European Court of Justice is currently considering these matters in a request by the Commission on the conclusion of the Free Trade Agreement that the EU negotiated with Singapore (the controversial issue is competence over investment policy, transport services, intellectual property, and sustainable development). The participation of Member States, however, may also be agreed upon pursuant to political considerations. In the case of CETA, for instance, whilst the European Commission was of the view that the Agreement ought to be concluded by the EU alone, Member States disagreed. In order to avoid a delay in its application (and given the pending dispute before the Court of Justice), the Commission proposed in July 2016 that CETA be signed, provisionally applied, and concluded as a mixed agreement. The negotiation and application of international treaties are, therefore, shrouded in legal and political complexities. As for the public disquiet they have caused, it expresses a range of concerns, some of which are related to the treaties themselves. The objections raised in the Walloon assembly, for instance, were about the impact of CETA on environmental, labour, and consumer standards, as well as the establishment of the investment tribunal and the impact this might have on national regulatory autonomy. The role of investor-State dispute settlement mechanisms has also been central to the controversy that has surrounded the negotiation of TTIP. In the case of the Agreement with Ukraine, some of the concerns were about movement of persons and the financial support to that counry. The fate, however, of international treaties negotiated by the EU is also affected by issues that are extraneous to the treaties themselves, such as domestic politics, concerns about immigration, and wider concerns about the direction of the EU. Whilst having rattled the Union's institutions, these on-going tensions have not diminished the EU's appetite for international negotiations. On the one hand, the Union has kept negotiating trade agreements with third countries, a case in point being Japan, the negotiations with which are progressing at a rapid pace. On the other hand, the EU has been exercising its internal negotiating muscle in reaching political compromises that would address public concerns and would pave the way for the smooth application of treaties. It has done so in relation both to specific agreements and broader initiatives, such as its promotion of a multilateral investment court. The public disquiet, however, about the EU's trade deals is unlikely to be sated by legal ingenuity. Their instrumentalisation by domestic politics or populist rhetoric notwithstanding, national concerns raise fundamental questions about the coexistence of the Union and the Member States and the extent to which the latter may participate in what the former does in the world. These questions require that decision-makers in the Union and the Member States reflect on the political, practical, and legal implications. Two groups of academics have intervened, expressing differing views on the intensity and scope of national participation in the Union's international treaty-making. As for the legal dimension of this debate, the Court's Opinion on the Agreement with Singapore is expected to introduce some much-needed clarity on the delimitation of external competence, potentially rendering the conclusion of international treaties less controversial. In the meantime, however, 2017 is promising to be interesting - in the least attractive and most chilling sense of the word.

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