CLEER Paper 2018/1 - Van der Loo

Less is more? The role of national parliaments in the conclusion of mixed (trade) agreements

Guillaume Van der Loo

The aim of this paper is to shed more light on the role of national parliaments in the conclusion of mixed (trade) agreements. Whereas the involvement of national parliaments in the conclusion of mixed agreements has for a long time not raised serious legal or political problems, in the context of the arduous signature of CETA, the Dutch referendum on the EU-Ukraine Association Agreement and the broader debate on the consequences of major trade agreements such as TTIP and CETA, several legal questions and dilemmas came to the surface. For example, is there a duty on the Member States and their national parliaments to ratify a mixed agreement? What are the consequences of non-ratification? Which elements of a mixed agreement do national parliaments need to ratify? And what is the role of national parliaments with regard to provisional application of mixed agreements? This discussion took place in parallel with important judicial developments, in particular with Opinion 2/15 on the
conclusion of the EU-Singapore FTA.
After first discussing briefly the impact of Opinion 2/15 on the EU’s trade policy and the future of mixed free trade agreements (FTAs), this paper will explore the legal and political reasons to opt for the mixed formula. In addition, the role of the European Parliament and the different national parliaments in the conclusion of mixed agreements is briefly analysed. Then, three key legal questions or dilemmas related to national parliaments and mixed agreements are addressed; i.e. is there a duty on the national parliaments to ratify, what exactly do national parliaments need to ratify and what is their role with regard to the provisional application of such agreements.
This paper identifies a potential “constitutional deadlock” related to the ratification of mixed agreements: if a national parliament chooses to exercise its sovereign right not to ratify a mixed agreement, by the same token, it de facto blocks the Union from exercising its competences (as the agreement, including the provisions falling under Union competences, cannot enter into force). Considering the relevant case-law, the Treaty rules on the allocation of competences and, in particular, the duty of sincere cooperation, it can be concluded that there is a duty on the Member State to initiate its national ratification procedure (i.e. the parliamentary approval procedure) within a reasonable period after signature of the mixed agreement, but that this obligation has no impact on the outcome of this procedure. In addition, this contribution demonstrates that Member States, or their national parliaments, cannot unilaterally terminate the EU’s provisional application of an international agreement (although this may frustrate some members of national parliaments or even constitutional Courts in Member States). It is true that different statements adopted in the context of CETA’s signature have illustrated that there is an understanding between the EU institutions that if a Member State, or its national parliament, would not ratify an agreement, the provisional application would need to be terminated. However, such a decision needs to be taken by the Union, according to Union procedures.

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