Institutional Frameworks in EU Bilateral Agreements: Treaty Bodies and Special Procedures
From FTAs with sustainable development chapters to internal market access-enabling EU-Swiss Bilateral Accords or new-generation Association Agreements with DCFTA component – joint bodies and special procedures play a growingly important but largely overlooked role in governing European Union’s relations with third countries. Endowed with substantial authority and legitimacy, treaty bodies tend to develop their own agency from delegated and implied power, thus extending their functional scope beyond mere ‘recommendation’ and ‘executive implementation’: enabling everyday interaction and furthering treaty goals, joint bodies and special procedures present a dynamic institutional framework of governing bilateral relations. With real decision-making powers at hand, treaty bodies are capable of altering special procedures just as amending the treaties establishing them. Such a joint institutional agency raises legible concerns about the sources, extent and legitimacy of power exercised. This panel seeks to enquire into the institutional designs and legal frameworks of treaty bodies (such as joint councils, association committees, special bodies) and special procedures (such as conditionality, compliance, dispute settlement) set up by the European Union bilateral agreements with third countries. Four papers will cast a balanced and comparative look into (1) the role of formalized bodies in regulatory cooperation under the EU-Swiss bilateral accords; (2) the power and performance of ‘association bodies’ under the EU Association Agreements with Georgia, Moldova and Ukraine; (3) compliance mechanisms as found in EU FTAs with Vietnam, Japan, New Zealand, and Morocco; (4) the role of European Parliament in controlling and legitimizing treaty bodies in light of their expanding powers.
Presentations of the Symposium
Bilateral Agreements and Private Governance. Lessons from the Swiss Case for Brexit in Banking and Energy
Bilateral agreements and private governance play an important role in today’s international governance architecture. Both policymakers and businesses cooperate in order to address cross-border policy issues and find joint solutions. While in the case of bilateral agreements the scope of territorially bound political authority is expanded based on binding agreements between the contracting parties, private governance derives its authority from the mobilisation of required resources such as expertise or operational and technical capacity. The conference contribution analyses how these two mechanisms of cross-border cooperation interrelate in the context of the European Union’s external relations. More specifically, it studies the special case of bilateral relations between the EU and Switzerland, and asks what lessons we can draw from the Swiss case for the UK’s future relations with the EU. Beyond presenting the overall framework of the EU-Swiss bilateral agreements, the paper discusses how private governance complements political cooperation in the energy and banking sectors. A general finding is that the possibilities to accommodate external political demands become more limited with deeper integration. The creation of formalised bodies for cross-border regulatory cooperation established in the context of market integration typically excludes the participation from non-EU countries. Yet the need to address cross-border issues persists, which is why pre-existing mechanisms of private cooperation become more important to fill a regulatory gap. What is more, private governance can also be used to exert political influence through the backdoor, especially where private actors hold a mandate to provide regulatory input.
Beyond Institutional Design and Executive Implementation: Power and Performance of 'Association Bodies' under the EU's Association Agreements with Georgia, Moldova and Ukraine
The growing industry of bilateral cooperation agreements – spanning from free trade to integration – facilitates the proliferation of unique (bilateral) institutional frameworks. In the context of European Union’s incremental legalization of external relations through partnership and cooperation agreements, free trade deals as well as, growingly, association agreements, the importance of treaty bodies entrusted with powers to oversee, facilitate and sometimes even enforce the implementation of such bilateral agreements looms large. This particularly applies to the cases where such joint bodies are endowed with considerable decision-making powers (e.g. amendments to the agreement, binding decisions on furthering integration, etc.), as it is the case with the ‘association bodies’ established, in the 2010s, under the EU’s new-generation association agreements with Georgia, Moldova and Ukraine. Joint association councils, committees and sub-committees, including inter-parliamentary committees and civil society platforms, established thereby, may – by their very design – contribute to the regularization of strategic interaction between the Union and its three associated neighbours. However, the low visibility of such institutions, seen against the background of rather contesting sources and limits of their power (conferred powers and delegation versus comprehensive powers beyond executive implementation) are perhaps responsible for the scholarly neglect of the role and performance of such joint bodies. This paper aims to address the current gap in the literature, thus providing a comparative law-and-politics account of institutional design, legal aspects of power conferral as well as functional aspects of authority exercise by ‘association bodies’ as established under the EU’s new Association Agreements with Georgia, Moldova and Ukraine.
Redefining Compliance in FTAs - Mechanisms at the EU’s Disposal
Taking the European Union as the case-study of polyphonic actor, this paper advances two perspectives on compliance as such and the compliance mechanisms at the EU’s disposal. First, compliance provides resilience for the EU and allows for more innovations during the EU’s negotiations of free trade agreements (such as the forthcoming ones with New Zealand, Australia and Morocco) and as the agreements enter into force (for instance, EU FTAs with Vietnam, Japan South Korea, Singapore or Canada). Second, compliance as a tool of political power provides mechanisms for responsive and effective policy-making. Examining compliance in a non-dichotomous manner as a spectrum, this project identifies theoretical foundations for compliance mechanisms that promote the benefits of the EU and mitigate risks on various policy levels. So understood, compliance is defined as central to protecting fundamental standards such as human rights, sustainability and labor standards in free trade agreements – especially those featuring trade and sustainable development (TSD) chapters. To achieve this goal, a new conceptualization of compliance is presented and defended.
The European Parliament's Role in the Control of FTA Treaty Bodies
The Lisbon Treaty considerably strengthened the role of the European Parliament (EP) in legislation as well as trade treaty making. Whereas the EP thus became an influential actor in the negotiation of free trade agreements, its role in the operation of these treaties once concluded is very limited. The EP has almost no control over the decision making of treaty bodies. This lack of control is problematic as recent trade agreements became living instruments that are self-evolving. They establish treaty bodies that have binding decision making competences in order to facilitate the implementation but also alteration of the agreements. These competences have become increasingly substantial, go beyond mere execution of the agreements and include decision making on rather fundamental issues and norm generation which implies exercise of political discretion. Hence, these common organs enjoy public powers that have been transferred to them by way of treaty making.
Such transfer of public powers can be compared to delegation of rule-making and prompts the question which parliamentary control mechanisms do exist for this type of delegation of public powers by the EU to treaty bodies by way of treaty-making.
This paper will demonstrate that democratic legitimacy and institutional balance in the EU require a strengthened role of the EP with regard to delegation to treaty bodies, not least in reflection of the enhanced role of the EP in treaty-making and legislation. The paper formulates recommendations and identifies mechanisms that safeguard the necessary parliamentary control.