Empowering the European Parliament in the EU s Common Commercial Policy Perspectives of the next Framework Agreement.

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1 Empowering the European Parliament in the EU s Common Commercial Policy Perspectives of the next Framework Agreement Andreas Maurer Univ.-Prof. Dr. Andreas Maurer Jean-Monnet-Chair for Political Science and European Integration University of Innsbruck Innsbruck School of Political Science and Sociology Department of Political Science Universitätsstrasse 15 A 6020 Innsbruck andreas.maurer@uibk.ac.at Interinstitutional Agreements (IIAs) have been concluded between the Council of the European Union, the Commission and the EP (EP) ever since the founding of the European Economic Community. Despite the fact that they are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU - neither in political science nor legal studies. The legal nature of IIAs is the subject of disagreement among legal scholars; IIAs form part of the grey area of the EU s nomenclature of norms, which has been referred to in both legal and political science literature with terms such as soft law or informal conventions etc. Albeit non-binding in a strict legal sense, there is minimal agreement on the fact that IIAs are in effect politically binding - at least for the signing parties. 1 Linked to this argument there is evidence that the EP strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. This argument forms the focus of this paper article. Having had no formal say in treaty reform up to the entry into force of the Lisbon Treaty, 2 the EP created facts through informal but politically binding IIAs hoping that, once established, its new rights would be later codified at IGCs. Thus, IIAs pre-define future treaty reforms. Indeed, from the early 1990s onwards, MEPs themselves acknowledged that they conclude IIAs in the hope that they will sow the seeds for future treaty reforms. 3 Hummer, in an attempt to understand the legal nature of IIAs, argues that - despite varying strongly in denomination, form, content and impact -, IIAs nevertheless have one common feature: they grant the EP decision-making competencies, which were not contained in the founding treaties. 4 Viewed this way, the analysis of the role of IIAs in treaty reform could help to explain one of the key features of the EU s constitutionalisation process and a still under-researched puzzle in European integration theory, 5 namely the incremental parliamentarisation of the institutional system of the EU - i.e. the increased delegation of supervisory, budgetary, (co-)legislative, and assenting powers to the EP - over the last three decades. In what follows I will look at two areas in which IIAs figure prominently with regard to the EU's Common Commercial Policy: we track the evolution of the EP s participation in international agreements as well as the informal rules governing its relations with the Commission. The last part summarizes our analysis and checks our empirical findings against the theoretical assumptions.

2 1. Creating Accountability: Framework Agreements as a "contrât de legislature" The founding treaties foresaw the right of the EP to censure the Commission, thereby making the Commission accountable to it. However, until the fall of the Santer Commission there have been no serious attempts at using this right which was thus regarded as hardly applicable in practise. The EP had no say over the appointment of the Commission, which, in terms of a separation of powers would be the logical complement of the right of censure. With the first direct elections of the EP in and from its own perspective largely strengthened in its legitimacy - the EP informally held a debate and organised a vote of confidence on every incoming Commission based on provisions it introduced to its rules of procedure (RoP). Over time this procedure was accepted by the Member States and every Commission waited for the vote before officially taking office. Since then the formalisation of the right to appoint the Commission has always figured as a major demand of the EP. Form the EP s perspective; it was the only logical complement to the EP s right to hold a vote of no-confidence. The Maastricht Treaty formalised this practise and aligned the Commission s and the EP s mandate. It granted the EP the right to be consulted on the Member States choice of the President of the European Commission, and to approve the European Commission. From this point onwards, the EP talked of the European Commission's double legitimacy. While before then the Commission was formally only appointed by the Member States, it now gained its legitimacy also from the approval of the EP. Appointments reflect a dynamic system of checks and balances or, in the language of the European Court of Justice, a system of loyal co-operation as envisioned by Article 13(2) TFEU (ex-article 10 TEC). Given the EU s hybrid structure of indirect interest representation through its institutions, appointments create a relationship of accountability and responsiveness between the appointing and the appointed institution. Consequently, the right of approval was not only perceived as a formal but highly political act: in combination with the aligned mandates of both institutions the EP perceived its vote on the Commission as the establishment of a genuine legislative agreement 6 between the two institutions. This contract was based on the Commission s work programme for the legislative period which the designated candidate for the office for President of the Commission was to present before the EP holds its vote. The EP made clear that it would not approve a Commission without programme: pas de programme, pas de vote! [ ] Ce programme doit être un veritable contrat de legislature, which largely increased the Commission s accountability to the EP. 7 Strengthened with these formal rights of appointment and thus a major bargaining chip, the EP again at the informal level complemented its new powers by introducing a provision into its RoP, which obliges the individual nominated Commissioners to appear before parliamentary committees for hearings prior to the EP s vote on the Commission. 8 Fearing postponement of the EP s vote and therefore deadlock in the appointment process or, in the worst case, rejection of the entire Commission at this point the Commission already disposed of the bargaining chip of appointment rights -, the Commissioners followed the procedure. Thus, the new formal and informal mechanisms became a very important element for the strengthening of the Commission s formal legitimacy and its accountability to the EP. The Amsterdam Treaty built on these developments. Not only was the Commission as a collegiate body, but also the President of the European Commission now subject to a parliamentary vote of approval. When analysing how and if the EP used these bargaining chips, the structural bargaining advantages of the EP especially vis-à-vis the Council should be kept in mind. 9 The EP e.g. has a much longer time horizon regarding the adoption (or delay for this purpose) than governments in the Council that have to come up with results, the structural link between MEPs and the electorate is much weaker than in the case of Member States that have to defend their decisions. These and other factors work in the EP s favour. 2

3 2. Politics of Accountability: Framework Agreements between the EP and Commission To date, the codes of conduct and the framework agreements on the relations between the EP and the Commission are five consecutive, bilateral IIAs between the EP and Commission. They lay down the general framework for relations between the two institutions regarding all aspects of the decision making process such as implementing measures, legislative planning, information management and much more. They all codify mostly information rights for the EP or, in other words, lay down obligations of the Commission towards the EP. They stress that these agreements are adopted to strengthen the responsibility and legitimacy of the Commission. 10 Table 2: IIAs governing EP-COM relations Agreement Date Character Code of Conduct 1990 Bilateral EP-COM Code of Conduct 1995 Bilateral EP-COM Framework Agreement 2000 Bilateral EP-COM Framework Agreement 2005 Bilateral EP-COM Framework Agreement 2010 Bilateral EP-COM The 1990 code of conduct established the first interinstitutional contacts and was of a rather procedural nature. 11 In contrast, the second code of conduct (1995) 12 and in particular the framework agreements ( ) are of political nature and enlarge the EP s influence beyond treaty provisions. The evolution of these agreements over the period of 20 years mirrors the parliamentarisation process of the EU and depicts clearly the increased importance of the EP in the decision making process. 13 In contrast to the 1990 code of conduct, the 1995 code shows how the EP s role has changed due to the introduction and implementation of the co-decision procedure. The code was a result of the increasing linkage between the EP and Commission due to co-decision. In order to take full advantage of its new co-decision rights and to maximise its influence in areas not covered by co-decision, the EP needed a maximum of information and support from the Commission. Hence, the agreement, for example, obliges the Commission to keep the EP informed on an absolute equal footing with the Council concerning consultation documents, legislative proposals, international agreements and much more. It furthermore obliges the Commission to function as an interlocutor between Council and the EP, e.g. reminding the Council not to take any decisions before the EP gave its opinion after its first reading and informing the EP about the decisions taken in the working bodies of the Council and the like. It also regulates the attendance of Commission representatives at committee meetings, the obligation to appear in the plenary, to answer parliamentary questions etc. The document establishes a clear line of argument according to which the Commission is obliged to provide the EP with all this information because the EP s approval of the Commission exemplifies the relationship of trust which should bind the two institutions throughout the parliamentary term. This is a certain result and a reflection of the EP s increased powers in the approval of the Commission since Maastricht. As the two following agreements the Code of conduct was agreed upon with an incoming Commission. Negotiations began already during the investiture process and the EP thus profited from the Commission s dependent position. The 2000 framework agreement 14 builds on the code of conduct but takes the EP s rights further in many aspects. It explicitly contains provisions concerning the extension of the constructive dialogue and political cooperation, the improvement of the flow of information and the consultation rights of the EP on Commission administrative reforms. The institutions also agree on a number of specific implementing measures (i) on the legislative process, (ii) on international agreements and enlargement, and (iii) on the transmission of confidential 3

4 Commission documents and information. The 2000 framework agreement thus does not only flesh out the relationship between the two institutions on a procedural level according to their powers laid out in the treaty but also it gives the EP powers which go beyond the Treaty provisions. Its section on political responsibility is good example of this political nature of the agreement. It was introduced in reaction to the most recent experience with the just-about impeached Santer Commission. The EP asks each Commissioner to take political responsibility for action in the field of which he or she is in charge. Furthermore, the EP reserves the right to express a lack of confidence in a Commissioner and subsequently to ask the President of the Commission to seriously consider whether he should request that Member to resign. Such a right of the EP has no basis in the treaty. Although consecutive treaty amendments have seen the role of the EP in the executive appointment strengthened, this provision is by no means foreseen in the treaty. The overall assessment of this agreement is that it goes very far in strengthening the scrutiny of the EP over the Commission, in tying the Commission to the EP and rendering the Commission, it s President and its individual members accountable to it. 15 The 2005 and 2010 framework agreements 16 go even further and introduce sections concerning the possible conflicts of interest of Commissioners and a procedure to be followed if a Commissioner is replaced during the term in office of the Commission. These new provisions can be seen as consequences of the EP s dissatisfaction with single Commissioners, which emerged at the 2004 investiture hearings. 17 Why did the Commission enter the agreements although they establish so many obligations towards the EP? The 2000 document has to be understood against the background of the increased accountability and responsiveness of the Commission to the EP. In general the EP s role in the appointment and thus its political control over the Commission had increased largely with the new formal and informal mechanisms introduced since Maastricht to hold the Commission accountable. In particular, however the resignation of the Santer Commission in anticipation of a first successful impeachment procedure in the history of the EU left the EP strengthened in relation to the newly elected Prodi Commission. The EP used the window of opportunity to tie the weakened Prodi Commission down on the most controversial provisions of the agreement before it even settled properly in office. In 2005 the EP was in a similarly strong position after having successfully threatened not to approve the Barroso I Commission before Barroso changed several designated Commissioners who the EP did not consider appropriate for post of Commissioner - another illustration of our argument that the EP used its bargaining chips to create interinstitutional conflict. In this case the link to the IIA is not as direct, since it was finalised a few months after the investiture. However, the negotiations on the IIA began earlier in view of the new legislative term. However, by backing down and pushing Member States to withdraw the rejected designated Commissioners in what was one of the major power struggles between the two institutions in the history of the Union, the EP admitted the EP s right to influence the individual composition of the Commission, which was then fixed in the new IIA. In large parts, the framework agreements simply lay down how the institutions work in practice together. However, some provisions go well beyond the EP s rights set out in the Treaties, especially regarding the Commission s direct accountability to the EP. To get the Commission to agree to these politically sensitive aspects, the EP took used its increased powers in the investiture and censure of the Commission. 3. The "legislative contract" after Lisbon: The case of Trade Policy Prior to the Lisbon Treaty, the EC Treaty did not require the consultation of Parliament on CCP measures and on the conclusion of trade agreements. 18 Regarding the autonomous i.e. internal trade measures, ex-article 133 ECT simply held that "the Commission shall submit proposals to the Council for implementing the common commercial policy". Regarding international trade agreements until December 2009, Parliament's assent was exclusively linked to ex-article 300, whose paragraph 3, subpar. 1 held that "the Council 4

5 shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3)", while subpar. 2 held that "agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained". Accordingly, trade agreements did not require the consent of Parliament unless they fell into one of the conditions set out in Article 300 ECT. In practice, this meant that "pure" trade agreements were never referred to Parliament. The consultation of Parliament according to the procedure set out in Article 300(3), subpar. 1, was rather exceptional, while the assent of Parliament was only required for agreements that established a larger political framework (e.g. association, partnership, or economic partnership agreements). Whenever Parliament wanted to finally approve or reject an international agreement, it therefore needed to point to Article 300 as the legal basis, and to underline it's political, i.e. "trade-plus" or "not-entirely-commercial policy" nature. 19 The only instances when Parliament was involved in the conclusion of such agreements was when the proposal at stake was based on more than one legal basis (e.g., co-decision for acts based on a dual legal basis of Articles 133 ECT and 95 ECT 20 or assent for agreements which incorporated one of the elements in Article 300(3), second subparagraph, ECT, i.e. when an agreement had budgetary implications, when it lead to establishing a specific institutional framework by organising cooperation procedures, and when they entailed an amendment of an act adopted under the codecision procedure 21 ) or, in exceptional circumstances, when the Council consulted Parliament on a facultative basis 22. Overall, the views of Parliament were not sought until the Commission had reached a deal with the respective third country and the Council did endorse it. The options of Parliament for impacting on the substance of an agreement were almost non-existent. Parliament thus requested more powers for scrutinising the Commission's and Council's CCP agenda. 23 To informally develop Parliament's rights of scrutiny in CCP, Council and Parliament first agreed on the so-called Luns-Westerterp procedures for association agreements ("Luns") 24 in 1964 and international trade agreements ("Westerterp") in Both bilateral IIAs were introduced as a substitute for giving the EP more extensive rights of assent. 26 The two bipartite IIAs provided for a threefold involvement of Parliament during the negotiation phase of international agreement via (1) plenary debates before the start of negotiations, (2) permanent contacts between the EC/EU Chief negotiators and Parliament during the negotiations and (3) forwarding confidential information to Parliament about the outcome of negotiations, i.e. after the signature of an agreement, but before its final conclusion. Parliament translated these provisions in its Rules of Procedure the EP by providing for a right to suspend the opening of negotiations (ex-rule 83(2)), to be regularly and thoroughly informed (ex-rule 83(4)) and to adopt recommendations and require that these be taken into account before the conclusion of the international agreement under consideration (ex-rule 83(5)). In addition, ex-rule 83(6) postulated a parliamentary right of consultation or consent at the end of the negotiation phase, before the signature of the agreement. 27 Both IIAs did not guarantee Parliament a right to be continuously informed of the EC s external trade relations. In fact, the implementation of the agreements remained at the Council's discretion, and Parliament had no power to sanction the non-compliance of Council in this regard. 5

6 For this reason, the Parliament's former Committee on External Economic Relations proposed a reform of the procedure that sought to enhance the Commission's responsibility vis-a-vis Parliament throughout the various steps of the procedure. Draft EP Outline for the ideal process of negotiating an association or cooperation Agreement 28 Commission Council Parliament 1. Exploratory Conversations with Third Party 2. Submission of proposal for negotiating mandate to Council by Commission 3. Council issues "Negotiating Directives" Parliament - informed of outcome of explanatory conversations - relevant committee/ committees - recommend orientation debate in plenary) Submission of proposal for negotiating mandate by Council to Parliament for its opinion Relevant committee/committees can recommend orientation debate in plenary 4. Negotiations by Commission with third country 5. Initialling of agreement by Commission 6. Council consults Parliament before concluding an agreement. Parliament gives its opinion under Article 238 Confidential reports on state of negotiations from Commission to Parliament Parliament enabled to ask for further negotiations before initialling Luns-Westerterp procedure Parliament gives its opinion Parliament's agreement to be necessary before conclusion of an agreement whether under Articles 238, 235, 113 or 43 (2)) b In exchange, Member States were highly resistant to Parliament's attempts for a more comprehensive say in CCP. Their fears were illustrated by a paper of the European Union Committee of the House of Lords, arguing that this would risk slowing down and politicising what is already a difficult negotiating process within the Doha Round. Furthermore, comparisons with the Fast Track authority in the United States highlight the potential danger for the EP to become a lobby for protectionist interests, and thus for anti-liberalisation voices. 29 In view of this resistance, Parliament tried to relate its requests for control and participation in CCP more and more towards the Commission. Building on the 1990 Code of Conduct and the fact that the Commission was ready to agree on a set of bilateral, political commitments in implementing its responsibility towards Parliament, 30 the 1995 Code of Conduct 31 covered for the first time the negotiation of international agreements, thereby perpetuating and enhancing the interinstitutional compromise enshrined in the original Luns and Westerterp IIAs. Under point 3.10., the Commission agreed that, "in relation to international agreements, including trade agreements, [it] shall inform the competent parliamentary committee, in confidence where necessary, of the draft recommendations relating to the negotiating directives." Moreover, the Commission consented to "keep Parliament, through the Parliament committee, regularly and fully informed of the progress of negotiations." Finally, the Commission committed itself to "facilitate the inclusion of Members of the EP as observers in Community delegations negotiating multilateral agreements, on the understanding that the Members may not take part directly in the negotiating sessions themselves, wherever the Commission alone represents the Community." Although the Nice Treaty did not substantially change the legal provisions of Parliament's roles and functions regarding international agreements and the CCP, the 2000 Framework Agreement 32 developed the Parliament-Commission relationship some steps further. First, the 6

7 scope, timing and frequency of information to be forwarded to Parliament in relation to international agreements was substantially widened ("quickly and fully inform [...] at all stages of the preparation, negotiation and conclusion of international agreements"). The Commission agreed that it should forward information at a stage that would enable it "to be able to take due account of the EP's views in so far as possible", and that would allow Parliament "to express its points of view if appropriate." As regards the scope, the 2000 FA explicitly covered information about "decisions concerning the provisional application or the suspension of agreements; and the establishment of a common position in a body set up by an agreement based on Article 310 of the EC Treaty." Finally, the provision regarding the inclusion of MEPs as observers in Community delegations negotiating multilateral agreements was widened to cover the regular information of MEPs "on the progress of negotiations during the meetings [...] in order for the Commission to be able to take account of the EP's views." The 2005 Framework Agreement continued the earlier reassurances on the timely and comprehensive flow of information, including the "draft negotiating directives, the adopted negotiating directives (and) the subsequent con-duct of negotiations", to allow Parliament "to express its point of view if appropriate" which again shall be taken into account by the Commission "as far as possible". What is striking is that only the 2005 agreement generated a Council reaction expressing its concern "at the fact that several provisions of the new framework agreement seek to bring about, even more markedly than the framework agreement of 2000, a shift in the institutional balance resulting from the Treaties in force". Council "recalled" the two other institutions "that the procedures enabling the EP to be involved in international negotiations are governed by Article 300 of the EC Treaty." 33 According to Thym, "it is not immediately clear why the Council publicly stated its objections in 2005 given that it continues a long tradition of informal parliamentary involvement in international negotiations dating back to the 1964 Luns I procedure." 34 Thym offers two reasons: first, the "repeated attempts by the EP to use interinstitutional arrangements as an instrument for the incremental change of the living constitution with a view to permanently enhance its role in international relations", and second, the fact that the "Council was [...] engaged in a protracted dispute with the EP about the financing of the Common Foreign and Security Policy (CFSP)". 35 In my view, this analysis is not complete. One should add that the Council realised in 2005 that Parliament was changing its overall strategy of addressing the issue of information and consultation with the Council. In fact, Parliament thought that the Luns-Westerterp arrangements did concentrate on an outdated relationship between Council and Parliament. Given that the Commission became more and more dependant on Parliament's powers under the investiture procedure, MEPs directed their attention to this institution to make it fully accountable for providing information at all stages of a procedure towards an international agreement. 4. The 2010 Framework Agreement The Lisbon Treaty provides many substantial changes in the area of CCP and for the related EP's powers and responsibility: According to Art. 207(2) TFEU Parliament and Council now act as co-legislators on an equal footing when determining the framework for implementing the CCP. The substance of the CCP is extended and not only covers goods, services, and the commercial aspects of intellectual property, but also foreign direct investment. Parliament's consent is required for the conclusion of all trade agreements. The Treaty also establishes the EP as a co-legislator in the field of economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries (Art. 212 (1)TFEU). 7

8 The Treaty establishes a legally binding obligation for the Commission to keep Parliament regularly informed on on-going negotiations, with the same degree of information that it provides to the special committee appointed by the Council (Trade Policy Committee - TPC). These changes substantially reinforce the EP's profile as the EU's only directly elected institution that legitimises those parts of the EU s external policy, which are defined as an exclusive competence of the Union. They therefore called the EP, the Commission and the Council to review their inter-institutional relations. In its opinion on the Parliament's new role and responsibilities implementing the Treaty of Lisbon, the Committee for International Trade initialled its requests for the future organisation of interinstitutional relations in the area of CCP 36. Regarding the Commission, it called the Commission to inform Parliament on all CCP matters on a par with the special Committee referred to in Article 207 of the Treaty on the Functioning of the EU (TFEU). Objecting that the Treaty of Lisbon did not provide Parliament with the right to approve the mandate of the Commission to negotiate a trade agreement, the Committee asked for a procedure that would entitle Parliament to establish preconditions in order to give its consent, which is required for the conclusion of all trade agreements. It therefore stressed the need to reinforce the 2005 Framework Agreement, and in particular its paragraph 19. More specifically, the Committee asked for the inclusion of specific provisions in a renewed Framework Agreement that call on the Commission: to react to the preconditions Parliament may set for giving its consent to the conclusion of a trade agreement before effectively starting the negotiations; to provide Parliament with all the necessary information relating to the CCP and the negotiation of commercial agreements or the negotiation of the commercial components of any agreement, including all proposals and draft proposals for negotiating mandates and/or directives, in sufficient time for Parliament to be able to express its views and for the Commission to be able to take due account of those views; with regard to the transparency of operations of the Article 207 TFEU Committee, to make available all documents to the Parliament s responsible Committee; to include an observer delegation from the Parliament in any negotiation on commercial agreements or commercial components of any other international agreement. In the same report, the Committee also addressed several demands towards the Council: First, it stressed that the wording measures defining the framework for implementing the common commercial policy in Article 207 (2) TFEU implies that non-essential elements of these acts may be amended or supplemented by the Commission in the form of delegated acts. Secondly, it noted that, with respect to delegated acts, the Parliament will have considerable powers, which could go so far as objecting to the entry into force of the delegated act in question, if the main co-decided act so provides. Thirdly, it considered that uniform conditions for implementing legislative acts in the CCP require the legislative acts to confer implementing powers on the Commission for adopting implementing acts, in accordance with Article 291 TFEU. In conclusion, the Committee finally called on the European Council, the Council and the Commission to consider the negotiation of a new Inter-Institutional Agreement with Parliament in order to agree on a substantive definition of its involvement in every stage leading to the conclusion of an international agreement. To start its bargain with the Commission, the Committee requested the Commission, through a letter sent by its Chairman to Commissioner De Gucht, to provide a full and comprehensive overview 8

9 - of all working groups, advisory groups and Comitology Committees operating in the field of the CCP under the chairmanship of the Commission, including information about their mandate, their legal basis (either with regard to the TEC, the TEU, the TFEU, or any relevant derived legal basis), and their activity (frequency of meetings, organisation, output); - of all pending or trade negotiations, including detailed information on all procedural steps so far (related to authorising the opening of negotiations, nominating the negotiator or the head of the negotiating team, negotiating directives, authorising the signing of the agreement, authorising its provisional application before entry into force etc); - of all envisaged trade negotiations, structured by geographic area/region and/or type and/or substance of agreement and indicative timeframe; - of all pending legislative proposals including implementing measures, including those where "sui generis" implementing measures have been defined by the Council, thus escaping the Comitology-system and therefore any parliamentary right of scrutiny. Overall, the Committee pursued a strategy to widen the scope and content of information as well as to make its digestion more effective. Members therefore underlined the need to agree with the Commission on the set-up of an inter-institutional database for the inclusion and storage of all information that the Commission transmits to the TPC and all Commission Working or Advisory Groups that are active in the field of the CCP. In addition, the Committee asked the administrations of both Parliament and the Commission to consider methods for establishing a reciprocal mechanism for joint forward planning in relation to the CCP, covering, i.e., positions by the EU member states regarding Trade Agreements, proceedings in related organisations (WTO, ACTA, ITTO etc.), monthly meetings of the Committee Coordinators and the Commission's Director General for Trade to update information and policy options, in-camera-briefings by the Commission on ongoing negotiations, regular meetings of the Committee's Chair with the TPC, joint meetings of the Committee's and the Commission's delegation before and during WTO and similar, international meetings. Of specific importance for Parliament was the Lisbon Treaty's provision in Art. 207(3). Even though, during the negotiations, Parliament is not involved in terms of "consultation" 37, Art. 207(3) should be interpreted in conjunction with the general provision on the negotiation and conclusion of international agreements 38, that is to say Art. 218 TFEU. This article does not contain such a specific rule, but a rather more general provision, according to which "the EP shall be immediately and fully informed at all stages of the procedure" (paragraph 10). It follows that the Lisbon Treaty establishes a legally binding obligation for the Commission to keep Parliament regularly informed on on-going negotiations, with the same degree of information that it provides to the TPC. This Committee is a body of national experts dealing with the ex-ante scrutiny and consultation of Commission s proposals and activities with regard to the negotiation of international trade agreements. The TPC sits - in a strange way and similar to the Standing Committee on Agriculture - "between" COREPER and the Council. It precooks any decisions that are formally taken by the Council in relation to agreeing on trade agreements, negotiation mandates etc. The TPC is key to understand how Member States governments secured for almost 50 years that the Commission can not act alone, without any control by governments of the EU. 39 As all international trade agreements now always require the EP s consent, the role of the TPC as well as the interest of the EP in gathering information about the TPC changed. Whereas Parliament so far focussed on what the 133 Committee has been dealing, it now moved on to a more ex-ante focus on what the TPC will deal with. For the Parliament, such ex-ante information is essential in order for it to influence the negotiations and to ensure that it makes known its position before the actual conclusion of the negotiations when it can only give or withhold its consent, without being able to amend the content of the agreement. For the Commission, having an early feedback from 9

10 Parliament is a way of ensuring that at the end of the negotiation procedure the agreement will be agreeable to the Parliament. Building on this analysis, Parliament's negotiation team for the Framework Agreement argued that the risk of Parliament withholding its consent will be minimised if Parliament can closely monitor the negotiations and the Commission has an opportunity to take Parliament's views into consideration throughout the negotiations, before the signing of the agreement. During the negotiations, Parliament therefore sought ensuring that it is well informed about the intention to start negotiations, the negotiating directives and have a detailed understanding of the conduct of the negotiations. In particular, Parliament requested to be informed on how the Commission intends to take its views into consideration and to be given reasons why some of its requests could not be positively considered during the negotiations. To fortify its requests for information, consultation and co-delegation in relation to the 2010 Framework Agreement, Parliament developed a critical analysis of the derived legal bases in the current anti-dumping regulation (ADR, Council Regulation (EC) No 384/96 40, and the current anti-subsidy regulation (ASR, Council Regulation (EC) No 597/ ). 42 Given the Council's loud resistance against Parliament's demands, the provisions regarding international agreements became the most difficult negotiation item for the 2010 Framework Agreement. In fact, the Council's Legal Service published several thorough legal opinions, stating that the agreement risks modifying the balance between the Institutions at the Council's expense. 43 More specifically, the Council's Legal Service criticised Points 9 and 19 to 25, as well as Annex 3, of the agreement: These provisions "aim to accord the EP prerogatives which are not provided for in Article 218 TFEU. More especially, this involves the obligations imposed on the Commission by Annex 3 to take due account of the Parliament's comments in the entire process of negotiation and to provide it with a whole series of documents (in particular the draft negotiating directives, draft amendments to negotiating directives, draft negotiating texts or any relevant documents received from third parties, subject to the originator's consent) relating to international negotiations. Such obligations, combined with the obligation on the Commission to take account of the EP's views and inform it of the way it has incorporated them in the texts negotiated, are not provided for by the Treaty." However, the Commission finally agreed to the essential aim of Parliament, namely to be fully informed "at all stages of the negotiation and conclusion of international agreements, including the definition of negotiating directives" in order to serve the purpose of facilitating Parliament s consent, to give more predictability to the procedure and to avoid non-conclusion of international agreements when the negotiation has already been completed. Parliament convinced the Commission that the Council's critique is isolating parts of Article 218 from the Treaty's overall construction, and therefore, misleading. Of course, one may share the Council's view that Article 218(7) TFEU gives the possibility to the Council alone, when concluding an agreement, to give authorisation to the Commission. But the Council's further interpretation of Article 218(7) TFEU appears to miss three important points: - Firstly, the provision states explicitly that it is a derogation, namely to paragraph 218(6) TFEU, and, according to the constant case-law of the Court of Justice, derogations need to be interpreted strictly. - Secondly, the authorisation from the Council is only possible if the agreement itself provides that a modification to it might be adopted by simplified procedure or by a body established by the agreement. Therefore, since Parliament is called to give its consent to the agreement itself, it is always up to it's majority whether or not to accept this possibility, taking into account the scope and nature of the agreement in question as well as the Council's strict interpretation of the provision. 10

11 - Thirdly, in any case, the Council and the Commission remain under the general obligation to inform Parliament. It is reasonable to expect that both will take into consideration the possible reaction of the latter. To avoid problems at the later stages of a negotiation, this information should be given before the decision is taken by the Commission, in order to fully safeguard the effet utile of Article 218(10) TFEU. Furthermore, the Council's interpretation of Article 218 TFEU, forwarded to the Chairman of the Committee on International Trade in a letter on 5 May 2010, raised serious concerns inside Parliament about the Council's readiness to fully implement the Lisbon Treaty. According to the Council, the Treaties "do not confer powers of action on the Parliament with respect to the preparation, negotiation and monitoring of trade agreements." Of course, Parliament does not have, nor does it want to have, the power to participate in the negotiation of trade agreements. However, this does not mean that Parliament is powerless in this regard: - Firstly, Article 207(3) TFEU obliges the Commission to "report regularly to the (...) EP on the progress of the negotiations". Parliament may react at every stage by the political means at its disposal: hearings, oral questions, resolutions, etc. It is only natural to expect that the positions of Parliament will be taken into consideration at the negotiation stage in order to pave the way for the final parliamentary consent of the agreement. For this reason, it is simply not correct to say that Parliament has no power of action with regard to monitoring the negotiations. In fact, it is this provision together with Article 218(10) TFEU which foresees the full and immediate information of Parliament which aims specifically to fulfil that purpose. These provisions would be empty of substance if one were to hold that Parliament is to be informed, but it does not or should not monitor the negotiations. Article 218(10) TFEU on the negotiation and conclusion of international agreements provides that: "The EP shall be immediately and fully informed at all stages of the procedure". To the EP's understanding, "all stages of the procedure" means that full information is required at: 1) the initial stage of the procedure: a) recommendations submitted by the Commission, or, for agreements that relate exclusively or principally to the Common Foreign and Security Policy, by the High Representative, to the Council; b) Council decision authorising the opening of negotiations and nominating the Union negotiator, together with the directives which the Council may address to the negotiator and any revisions thereof; c) designation of a special committee in consultation with which the negotiations must be conducted, where applicable. 2) the negotiation stage: all steps of the negotiations up to the initialling of the text of an agreement by the negotiators; 3) the final stage: a) signature, b) possible provisional application, c) conclusion; 4) other stages in the procedure: a) suspension of the agreement, b) modifications to the agreement when the agreement provides for a simplified procedure, and c) the positions to be adopted by the Union in bodies established by the agreements. To my understanding, the Council and the Commission are responsible for providing such information to Parliament in their respective roles. And Parliament can ask for it when they fail to deliver. According to Article 207(3) TFEU, the Commission is obliged to provide all 11

12 the information about the negotiations and proposals it makes to the Council concerning recommendations for negotiation, proposal for signature and provisional application, etc. in relation to trade agreements. For other agreements, the Council is responsible for providing all information in the stages of the procedure for which it is authorised by the Treaties, in particular the decision authorising the opening of negotiations, the decision nominating the negotiator and the negotiating directives addressed to the negotiator. Moreover, Article 218(10) TFEU calls for the "immediate and full" information of Parliament and does not provide for any exception. "Full" information includes all information throughout the procedures covered by Article 218 TFEU, including mandates and negotiating texts, where they are available. Such information is pertinent, especially since with the coming into force of the Treaty of Lisbon the consent of the EP is required for the conclusion of all international agreements in fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent of the EP is required. 5. CETA - a test case for implementing the Lisbon Treaty and the Framework Agreement Parliament had to wait until early 2011 to move onto a test of its interpretation of Article 218(10) TFEU and the related provisions of the Framework Agreement. In February 2011, the INTA Committee received from the Commission three draft recommendations on the modification of the negotiating directives for negotiations on agreements with Canada, India and Singapore in order to authorise the Commission to negotiate on investment. The Commission classified these drafts in accordance with Article 4 of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Accordingly, paper copies of the draft mandates were transmitted to the INTA Secretariat in order to make them available to the Chair, Vice-Chairs, Coordinators and the relevant Rapporteurs only. Point 23 of the Framework agreement states that "Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements, including the definition of negotiating directives", while Point 24 stipulates that such information "shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament's views as far as possible into account". In relation to this general commitment of the Commission, point 2 of Annex III to the FA further clarifies that "when the Commission proposes draft negotiating directives with a view to their adaptation by the Council, it shall at the same time present them to the Parliament". Already in February 2010, the INTA Chair asked from Commissioner De Gucht a commitment by the Commission to agree on reinforced association of Parliament at the stage of defining the negotiation directives in such a way as to give full effect to Articles 207 and 218 TFEU, while respecting each institution's role and complying in full with new procedures and rules for safeguarding of necessary confidentiality. Anticipating the debates that would rise about FDI in international trade, the INTA Chair sent, in September 2010 another request to De Gucht, asking from the Commission: to send to the Parliament as soon as possible all draft proposals for any mandate on investment before sending it to the Council for approval, arguing inter alia that "if Parliament's opinion is not taken into account before the mandate is adopted by the Member States, Parliament would be effectively excluded from any substantial discussion on the Commission's priorities and the way it conducts future EU investment policy", and that no negotiations on investment are undertaken with any partner countries prior to the adoption by the Parliament of its own initiative report on the Communication of the Commission on the future investment policy. 12

13 In his response of October 2010 Commissioner De Gucht did not answer positively to neither the request to be consulted on the drafts before they are finalised and sent to Council, nor to the request to wait until the INTA Committee adopts its initiative report on the future investment policy before proposing draft mandates to the Council to negotiate investment chapters with Canada, India and Singapore. In December 2010, the acting Director-General of DG TRADE informed the INTA Chair that the Commission was about to adopt shortly "a Recommendation from the Commission to the Council on the modification of the negotiating directives for an Economic Integration Agreement with Canada, the Free Trade Agreement with India and the Free Trade Agreement with Singapore, in order to authorise the Commission to negotiate, on behalf of the Union, on investment", and that "the recommendations will be transmitted to the Parliament at the same time as they will be submitted to the Council". However, for technical reasons, the Commission delayed the transmission of the CETA draft, while the other two drafts were transmitted to Parliament without delays. The adoption of these negotiating directives by Council is foreseen for mid-may Until now, the Council has not given any commitments to take Parliament's views into consideration, and given the Council's views regarding Article 218(10) TFEU, Parliament can not be sure that it would receive the text of the adopted negotiating directives. Given that the draft negotiating directives are confidential documents, the question arises about the most appropriate ways for expressing Parliament's "point of view". One could draw a distinction between the general issues that are part of public debate, and the specific choices proposed by the Commission that do fall outside the public domain. The argument is the mere fact of making reference to the general choices of direction that EU investment policy in draft directives does not mean that all discussion on those choices should therefore become confidential. For example, some of those broader policy choices are already dealt with in Parliament's report on future European international investment policy, and some of Parliament's more country-specific (but still general) concerns are addressed in rather general resolutions on EU-Canada and EU-India trade relations. Consequently, if Parliament wishes to make more specific comments on issues that would otherwise be not known to the public (e.g. on specific items being included in or excluded from the draft negotiation mandate), it should address its concerns by means of confidential letters between the Committee Chair and the Commissioner. And given that Parliament can not control the communication between the Commission and the Council, it should forward these letters directly to the Council, as the institution that finally adopts the negotiating directives. Building on this scenario, the next question would be if and how (i.e. when and in which format) should the Commission be given an opportunity to give further information regarding the draft negotiating directives to Parliament. In fact, the Commission insists on holding "in camera" exchanges of views with the INTA Committee's Coordinators (the groups' whips in Committee) on the draft negotiating directives for Canada, India and Singapore. This kind of meetings is not unusual for the Committee. But it appears to be difficult for the ordinary Members of the Committee, including its Rapporteurs for the FDI dossiers, to accept such restricted "in camera" briefings. Furthermore, the Commission's proposal raises another, crucial question: How could - and should - the Commission take into consideration the European Parliament's "point of view" if the latter receives the draft negotiating directives at the same time as they are already proposed to Council for adoption? The Commission should either change its draft proposal and present it as an amended version to the Trade Policy Committee, or take Parliament's views into consideration during the negotiations with the Council's Trade Policy Committee. Overall, both the Commission and the Council are under a legal obligation to inform the Parliament at all stages of the procedure leading to an international agreement and the political obligation to take into account the positions of Parliament. These positions are not 13