© Springer International Publishing Switzerland 2015Christoph Herrmann, Bruno Simma and Rudolf Streinz (eds.)Trade Policy between Law, Diplomacy and ScholarshipEuropean Yearbook of International Economic Law10.1007/978-3-319-15690-3_15
Disputes on TTIP: Does the Agreement Need the Consent of the German Parliament?
Ludwig Maximilians University Munich, 80539 Munich, Germany
The TTIP Under Critical Review
The Start of the TTIP Negotiations
In February, 2013 US President Barack Obama and EU Commission President José Manuel Barroso announced that talks between the United States and the European Union would take place to negotiate an agreement on the Transatlantic Trade and Investment Partnership (TTIP) to create a Transatlantic Free Trade Area (TAFTA). In March 2013, the EU Commission sent to the Council of the EU a recommendation for a Council Decision authorising the opening of negotiations on a comprehensive trade and investment agreement, called the TTIP, between the EU and the USA.1 On 14 June 2013, the Council (Foreign Affairs, Trade) unanimously approved a mandate to the Commission for the negotiation of such an agreement.2 On the occasion of that same meeting, the representatives of the governments of the Member States meeting within the Council3 further mandated the European Commission to negotiate on behalf of the Member States in areas that have remained within the exclusive competence of the Member States in order to allow for a comprehensive trade and investment agreement.4 This demonstrates that the planned comprehensive agreement is designed to include matters for which the competences have not been conferred upon the European Union (neither as exclusive nor as shared competences) but remain with the Member States in accordance with the principle of conferral (Article 5 paras. 1 and 2, Article 4 para. 1 TEU). The inclusion of these matters entails a so-called mixed agreement between the US on one side and the EU and its Member States on the other side (see below). Additionally, the Council (Foreign Affairs, Trade) adopted directives for the negotiations on the comprehensive TTIP.5 These directives contain instructions concerning the nature and scope of the agreement, its preamble and general principles, objectives, market access (trade in goods, trade in services and establishment, investment protection, “including areas of mixed competence, such as portfolio investment, property and expropriation aspects”,6 public procurement), regulatory issues and non-tariff barriers, including sanitary and phytosanitary measures (SPS),7 rules on intellectual property rights, trade and sustainable development, customs and trade facilitation, existing sectoral trade agreements (e.g. on trade in wine), trade and competition, trade-related energy and raw materials, trade-related aspects of small and medium-sized enterprises, capital movement and payments, transparency, the inclusion of other areas of law, if mutually desired, institutional framework and final provisions.
The Problem of “Transparency” of the Negotiations
The information contained in that document has been classified RESTREINT UE/EU RESTRICTED which means that its “unauthorised disclosure could be disadvantageous to the interests of the European Union or of one or more of its Member States”.8 Therefore, all addressees were “requested to handle this document with the particular care required by the Council’s Security Rules for documents classified RESTREINT UE/EU RESTRICTED”. Although there can be legitimate reasons to keep the specific content of an agreement or the negotiating directives secret,9 the Council has to provide “a clear and coherent statement of reasons concerning its refusal to disclose those parts of a requested document”.10 The EU Commission was blamed for negotiating in secret without informing the public and also without providing sufficient information to the European Parliament and national parliaments. The Commission, however, refers to the negotiating mandate, agreed unanimously by all EU Member States. It points out that TTIP is no exception in the area of trade policy. Much rather, it is supposed to be a matter of course that the EU is represented at the negotiating table by the European Commission which works according to guidelines agreed by the EU Member States.11 They specify the EU’s red lines and what the Commission can and cannot discuss.12 The Commission emphasises that the Council, which consists of representatives of the Member States’ governments, and the European Parliament are also regularly involved in the negotiating process. It further claims that there have been more than 45 meetings with the Member States, also at ministerial level, more than 65 important TTIP documents have been sent to the European Parliament and over 80 parliamentary questions have been answered.13 The Commission published reports on each of the six rounds of negotiation talks conducted by the Commission and the US Trade Representative (USTR) since July 2013 which were also presented to the national parliaments, e.g. the German Bundestag.14 The Commission launched a public consultation.15 EU Trade Commissioner Karel de Gucht published a press statement following the stocktaking meeting with USTR Michael Froman on the TTIP and emphasised that the European Parliament, whose consent is necessary,16 would “not in the end approve a trade deal that undermines our European values or the social standards we have built over so many years” and he would not approve such a deal either.17 Moreover, the Commission published the state of play of TTIP negotiations ahead of the sixth round of talks.18 This is why the Commission takes the position that the TTIP negotiations are the most transparent trade negotiations ever. But neither the directives nor the EU basis for the negotiating text were officially published.19 However, a copy of the directives of 14 June 2013 was leaked. So was—in March 2014—a copy of the EU negotiating text of 3 July 2013 on trade in services, investment, and e-commerce20 and—in May 2014—a copy of the initial EU position on raw materials and energy. Therefore, the discussion can now be based on texts and not only on speculations or even assertions which in some cases have no factual background.21
Critical Points of TTIP
Not only NGOs but also academics like Martti Koskenniemi22 or Noam Chomsky23 and national parliaments of the Member States have criticised the lack of transparency and the secrecy of the negotiations. EU Trade Commissioner Karel de Gucht responded by emphasising that the Commission had regularly consulted a broad range of civil society organisations in writing and in person, including one meeting with 350 participants from trade unions, NGOs and business.24 The question is, however, whether these consultations had a real influence on the point of view of the EU Commission and hence on the negotiations.
The alleged boosting effect of TTIP on the economy is highly disputed—and probably not really predictable. As to the content of TTIP, the main critics from NGOs, trade unions and consumer groups refer to the fear of lower standards concerning products, especially foodstuffs,25 but also social and environmental standards, workers’ protection and consumer rights. This effect is not necessarily the result of harmonisation but may be one of the consequences of mutual recognition. Critics say that the lowering of standards would mostly benefit large businesses. But there are also examples of small and medium-sized enterprises (SMEs) profiting enormously.26 A very critical point is the planned investor protection through the inclusion of an investor-to-state dispute settlement (ISDS). Critics fear that especially environmental standards could be affected if not the courts of the State where the investment takes place but arbitral tribunals such as those administered by the International Centre for Settlement of Investment Disputes (ICSID) will be competent to decide.27 Furthermore, the exclusion of national courts is deemed to run counter to the principles of national sovereignty and democracy.28 The argument of the EU Commission,29 that US companies already have the right to take an EU government to court under existing ISDS-rules like the Energy Charter,30 is ambiguous: On the one hand the problems of the Vattenfall case31 support the arguments of the critics; on the other hand TTIP provides a chance to learn from past shortcomings and introduce improved rules of arbitration, especially setting out a clear-cut scope of application.32
In its resolution of 14 May 2013,33 the European Parliament welcomed the negotiations on TTIP in principle,34 but mentioned some sensitive issues where the position of the EU ought to be steady as a rock. Thus, it considered it “essential for the EU and its Member States to maintain the possibility of preserving and developing their cultural and audiovisual policies, and to do so in the context of their existing laws, standards and agreements” and called, therefore, “for the exclusion of cultural and audiovisual services, including those provided online, to be clearly stated in the negotiating mandate”.35 The agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications36 and should guarantee full respect for EU fundamental rights standards, especially a high level of protection of personal data.37 The European Parliament emphasised the sensitivity of certain fields of negotiation, such as the agricultural sector, where perceptions of Genetically Modified Organisms (GMOs), cloning and consumer health tend to diverge between the US and the EU. Nevertheless, it saw “an opportunity in enhanced cooperation in agriculture trade, and stresses the importance of an ambitious and balanced outcome in this field. But the agreement must not undermine the fundamental values of either side, for example the precautionary principle in the EU.”38 It stressed that financial services must be included.39 The Parliament “reminds the Commission of its obligation to keep Parliament immediately and fully informed at all stages of the negotiations (before and after the negotiating rounds)”.40 This obligation is enshrined in Article 218 para. 10 TFEU. But Parliament furthermore “recalls the need for proactive outreach and continuous and transparent engagement by the Commission with a wide range of stakeholders, including business, environmental, agricultural, consumer, labour and other representatives, throughout the negotiation process, in order to ensure fact-based discussions, build trust in the negotiations, obtain proportionate input from various sides, and foster public support by taking stakeholders’ concerns into consideration”. It “encourages all stakeholders to actively participate and to put forward initiatives and information relevant to the negotiations”. Members of the national parliaments like the Members of the German Bundestag can be very important “other representatives”, at least if their formal consent is necessary for the entry into force of TTIP. The European Parliament is aware of this aspect, having in mind its own role. It “recalls that Parliament will be asked to give its consent to the future TTIP agreement, as stipulated by the Treaty on the Functioning of the European Union, and that its positions should therefore be duly taken into account at all stages”.41
TTIP is also debated critically and with diverging points of view in national parliaments.42 In the German Bundestag the parliamentary groups of the opposition parties BÜNDNIS 90/DIE GRÜNEN (ALLIANCE 90/GREEN PARTY) and DIE LINKE (THE LEFT) and some of their MPs submitted parliamentary questions43 and initiated very intensive inquiry proceedings44 dealing with a lot of sensitive issues and critical points of TTIP and the respective positions of the Federal Government which is formed by a coalition of the Christian Democrats (CDU), the Christian Social Union (CSU) and the Social Democrats (SPD).45 There were even demands to stop46 or to suspend47 the negotiations. TTIP was debated in special forums of the Parliament.48 Some “no goes” were formulated or at least discussed.49 The Bundesrat (chamber of the German Länder), too, debated TTIP.50 Both legislative organs of Germany think that TTIP should be concluded as a mixed agreement which needs to be ratified by the Federal Republic of Germany with their consent.51 The academic advice service of the Bundestag published an expert opinion endorsing this stance.52 The same view was taken by both Houses of Parliament in the UK,53 by the governments of France54 and Austria55 and by the chairs of the relevant committees in the national parliaments of the Netherlands, Austria (both Nationalrat and Bundesrat), Belgium, the Czech Republic (both Chamber of Deputies and Senate), France, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Poland (both Sejm and Senate), Portugal, Slovakia and Slovenia.56 However, the opinion of the EU Commission seems to differ.57 Former EU Trade Commissioner Karel de Gucht wanted to submit the issue to the Court of Justice of the European Union if the EU’s exclusive competence continues to be contested.58 On 30 October 2014, De Gucht’s second to last day in office, the Commission eventually requested a Court of Justice Opinion on the competence to sign and ratify the Free Trade Agreement with Singapore.59 Therefore the question whether TTIP needs the consent of the national parliaments of the EU Member States and in Germany the consent of the Bundestag—or even the consent of the Bundesrat, too—has become relevant in practice.
Different Starting Points for the Need of Control by National Parliaments Over EU Agreements
The starting point for the need of control by national parliaments over EU agreements and the extent of the influence of the parliaments depends upon the question whether the European Union has exclusive competence to conclude the treaty or not. The competence to conclude the treaty depends upon the content of the agreement. National parliaments have the biggest influence if a mixed agreement is necessary to conclude the treaty with the intended content as this would require the approval of national parliaments. Therefore, the EU Commission is eager to avoid a mixed agreement. But this leads to the problem that some topics must be excluded. Some legal aspects may be doubtful and this is the reason why EU trade commissioner Karel de Gucht wanted to ask the European Court of Justice to issue an advisory opinion in accordance with Article 218 para. 11 TFEU. If the Union has exclusive competence the influence of national parliaments is restricted to the control of the German representatives in the European institutions. Real representatives of the Member State Germany are the Federal Chancellor as Head of Government (Article 65 Basic Law) in the European Council (Article 15 para. 2 TEU) and the Federal Minister acting in the Council (Art. 16 para. 2 TFEU: “representative of each Member State at ministerial level”). This control is based on national law (see below), but ever since the entry into force of the Treaty of Lisbon, it is expressly not only accepted but “welcomed” by EU law.60 The German members of the European Parliament, however, are independent. The influence of the national parliament, the Bundestag, is limited to informal consultations. The “German” member of the EU Commission is part of an institution which shall be “completely independent”. For this reason the members of the Commission “shall neither seek nor take instructions from any Government or other institution, body, office or entity” (Article 17 para. 3 subpara. 3 TEU), including the national parliament. This is why even informal consultations have to be restricted to the competent Commissioner.61
The extent of the influence on the national representatives in the Council depends on the question whether the decision on TTIP can be based on a qualified majority or whether the Council shall act unanimously. In the latter case the national parliament can instruct the representative in the EU institution to veto upon TTIP. Whether this instruction is legally binding is a question of national law; but the national regulation has to be in accordance with European Union law (see below).
The Requirement of Approval for a Mixed Agreement
The Qualification of TTIP: Is It a Mixed Agreement?
TTIP must be concluded as a mixed agreement if it touches on subject matters which fall outside the competence of the European Union and therefore remain within the competence of the Member States.62 But a mixed agreement will also be used in a case where competence over the subject matter of the agreement is shared between the Member States and the EU (concurrent competence),63 even if there is no legal requirement for this.64 Thus, a mixed agreement is only excluded if all of its subject matters are within the exclusive competence of the Union according to Article 2 para. 1, Article 3 TFEU. As long as the content of the agreement is not conclusively determined, the question whether TTIP must be a mixed agreement can only be answered on the basis of the information published during the ongoing negotiations.65 But there is a tendency that it shall be concluded as a mixed agreement—if it will be concluded at all.66
The Treaty of Lisbon, in order to abolish the lack of clarity resulting from the Nice Treaty amendments,67 significantly expanded the exclusive external competences of the EU concerning the common commercial policy (CCP).68 Transport however remains outside the CCP69 and is a shared competence70 which is likely to mean that trade agreements containing significant provisions on transport will continue to be mixed agreements.71 Furthermore, agreements that cover other policies outside the scope of the CCP still call for mixed agreements.72 This especially concerns competition law beyond the functioning of the internal market,73 where the EU has no exclusive EU competence, and trade deals extending to fields for which the EU has no internal harmonisation competence, such as health, culture, occupation, social policy, industry, environment and consumer protection.74
With regard to TTIP the following subject matters could require a mixed agreement or at least lead to a mixed agreement according to the current practice: transport services (even though the mandate does not specifically mention them the final treaty may be extended to this area), competition law beyond the functioning of the internal market (insofar as the mandate urges the Commission to include competition rules on cartels, mergers and state aid),75 mutual recognition, harmonisation and better cooperation between regulating entities to eliminate non-tariff trade barriers76 (insofar as shared competences or even competences of the Member States are touched, e.g. certain standards in the field of employment).77 However, provisions concerning the mutual recognition or even harmonisation of certain standards may be considered as falling predominantly within the competence for the CCP so that Article 207 TFEU provides an exclusive legal basis.78 Foreign direct investment is expressly mentioned in Article 207 para. 1 TFEU and is thus within the exclusive competence of the EU. But it is controversial whether this field also includes portfolio investment79 which is mentioned expressly in the mandate as an area of “mixed competence”.80 The legal service of the Council,81 the governments of the Member States and the majority of academics82 consider that investor-to-state dispute settlement (ISDS)83 can only be included by a mixed agreement. However, due to mounting political opposition84 in this regard, it remains to be seen whether this part of the mandate can be realised at all.
The classification of TTIP and the legal necessity of a mixed agreement may remain disputed. But in the end, “mixity” is the result of a political choice.85 Sixteen chairs of EU committees of national parliaments have urged Trade Commissioner De Gucht to ensure that TTIP will be concluded as a mixed agreement. This point of view is shared at least by the majority—if not by all—of the Member States. Even EU Trade Commissioner De Gucht stated that he considered it “very likely” that the treaty will be a mixed agreement (see above). If the ECJ should really be seized with the matter it is doubtful whether it will decide the question in favour of an exclusive competence of the EU because it has been quite careful in its decisions on this topic. The Court has ruled that none of the possible difficulties which may arise from the nature of mixed agreements will provide a reason for altering the classification of the competence, or for arguing that it should be exclusive.86 Thus, from the perspective of the EU TTIP will be concluded as a mixed agreement—if it will be concluded at all.
Extent of the Approval Required from the EU and the Member States
A mixed agreement needs to be concluded by both the European Union and (in most cases)87 all 28 Member States. Being an important treaty, TTIP will be concluded in a two-step procedure: The negotiations end with the signing of the treaty. After that, the treaty is handed to the competent authorities of the EU and of the Member States whose approval is necessary for the ratification of the treaty. The necessary voting majority in the Council depends on the content of the treaty. This leads to different effects concerning the influence of the Member States and probably the influence of the national parliaments.88
Conclusion and Ratification by the European Union
For the conclusion of an agreement in the framework of the CCP, the Council shall act by a qualified majority.89 But if the agreement includes provisions “in the fields of trade in services, commercial aspects of intellectual property” and in “foreign direct investment”, unanimity of the Council is necessary if these provisions require unanimity for the adoption of internal rules on these subjects.90 The Council shall also act unanimously for the conclusion of agreements “in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity” and “in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them”.91 According to the mandate, TTIP “shall not contain provisions that would risk prejudicing the Union’s or its Member States’ cultural linguistic diversity, namely in the cultural sector nor limit the Union and its Member States from maintaining existing policies and measures in support of the cultural sector given its special status within the EU and the Member States”.92 Audiovisual services are explicitly excluded from the chapter on trade in services and establishment.93 Other aspects of TTIP, e.g. intellectual property rights94 or foreign direct investment,95 require the Council to act unanimously. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing96 and the conclusion of the agreement.97 The Council shall adopt the decision to conclude the agreement only after obtaining the consent of the European Parliament because TTIP covers fields to which the ordinary legislative procedure98 applies.99 After the adoption of the treaty by the organs of the Union it will be ratified by the Council according to international law.100
Conclusion and Ratification by the Member States
The Member States become parties of a mixed agreement in their own right. Therefore, the separate conclusion and ratification by each Member State is required. To ensure the complete implementation of the treaty, i.e. those parts which fall under the competence of the EU as well as the parts which fall within the competence of the Member States, and to demonstrate the uniform representation of the European Union (and its Member States) in international law, mixed agreements ought possibly to enter into force simultaneously for the EU and all of its Member States.101 Therefore, the EU will ratify the treaty only after its ratification by all Member States.102 The principle of loyalty (Article 4 para. 3 TEU) may urge the Member States to conclude and to ratify the treaty if the Council, on a proposal by the Commission, has decided that the participation of the EU is in the interest of the European Union.103 But in principle there is no such obligation.104 Insofar as the agreement could be concluded by the Union alone, the Member States are, however, obliged to secure the implementation of these obligations.105 If there is no express differentiation between the provisions concerning competences of the EU and those remaining exclusive competences of the Member States,106 according to international law, the agreement as a whole forms an “integral part” of Union law107 and is binding upon the Union as well as its Member States.108 The ECJ is competent to interpret mixed agreements as a whole.109
If a mixed agreement demands the ratification by all parties and a Member State does not ratify the treaty, those parts of the agreement which fall within the exclusive competence of the EU can be preliminarily applicable.110 If the content of the agreement falls within the exclusive competence of the EU or the shared competence between the EU and its Member States, the Union is responsible for the treaty as a whole. In this case the ratification by all Member States is not necessary. Only if parts of the agreement fall under the remaining exclusive competence of the Member States,111 their ratifications are peremptorily required.112
Required Approval of the German Bundestag
If TTIP will take the shape of a mixed agreement, the ratification of the treaty by the German Federal President113 will require the approval of the Bundestag as legislative organ.114 The consent must take the shape of a federal law. Keeping in mind its importance, there is no question that TTIP regulates the political relations of the Federation. Furthermore, TTIP relates to subjects of federal legislation because its content must be implemented by federal acts.115 But the Bundestag will only be able to vote en bloc in favour or against the treaty, amendments concerning the treaty itself are excluded.116 Therefore, the Bundestag must try to influence the content of the treaty at an earlier stage.
Influence of the German Bundestag on the German Representatives in EU Institutions
Basis in German Law
According to Article 23 para. 2 Basic Law (BL)117 the Bundestag shall participate in matters concerning the European Union. The Federal Government shall keep the Bundestag informed, comprehensively and at the earliest possible time. Before participating in legislative acts of the EU the Federal Government shall provide the Bundestag with an opportunity to state its position and shall take this position into account during the negotiations.118 The details are regulated by the Act on Cooperation between the Federal Government and the German Bundestag in Matters Concerning the European Union.119 This Act determines the notification principles (Section 3) and the projects of the European Union within the meaning of this Act (Section 5). Therefore the duty to inform the Bundestag and to secure the participation of the parliament in European matters120 includes not only negotiating mandates for the European Commission to engage in negotiations on international agreements of the EU but also items for discussion, initiatives, negotiating mandates and negotiation guidelines for the European Commission in the framework of the common commercial policy.121 The Bundestag must be informed as early as possible, i.e. at the beginning of the treaty negotiations.122 But the participation is also continuous because the relevant projects of the EU include proposals for legislative acts of the EU,123 and agreements like TTIP must be concluded and ratified by legislative acts. Before participating in projects, especially as a member of the Council in its legislative functions,124 the Federal Government shall give the Bundestag the opportunity to deliver an opinion. The Federal Government shall use this opinion as a basis for its negotiations. If the main interests expressed in the decision of the Bundestag do not hold sway, the Federal Government shall invoke the requirement of prior parliamentary approval in the negotiations. Before a final decision, the Federal Government shall endeavour to reach agreement with the Bundestag. But this shall not prejudice the right of the Federal Government, in awareness of the Bundestag’s opinion, to take divergent decisions for good reasons of foreign and integration policy. In this case the Federal Government does, however, have to account for its motives—if requested by one quarter of the Members of the Bundestag—in a plenary debate.125
Conformity with EU Law
This legal situation in Germany must be, and is indeed, in conformity with EU law. The aforementioned rules concretize Article 10 para. 2 subpara. 2 TEU which demands that the representatives of the Member States in the Council be “democratically accountable” to their national parliaments. Moreover, national parliaments are invited to “contribute actively to the good functioning of the Union”.126 But such contribution must not lead to a blockade of the law making process in the Council.127 Therefore, the national provisions must be an appropriate compromise between the necessary influence of the national parliament and the necessary margin of negotiations for the representative of the Member State in the Council. The German solution ensures the fulfilment of this obligation.128
Different Effect According to the Voting Procedure Which Is Required by EU Law
The amount of influence the German Bundestag has depends on the voting procedure which is required by EU law concerning CCP agreements (see above). If unanimity in the Council is required, the instruction of the German representative in the Council may urge him to veto the decision on the agreement if no acceptable compromise can be reached. In the case of majority voting it may be easier for the German representative to justify his approval to the agreement. He could take the position that he avoided being outvoted by granting some concessions not foreseen in the parliamentary debate.
Inclusion of the German Bundesrat?
Required Approval of the Bundesrat
If TTIP is a mixed agreement and needs to be ratified in Germany, the treaty requires the consent or participation in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law.129 Not only the Bundestag but also the Bundesrat 130 is “responsible” for the enactment of federal law. The Bundestag shall submit the law to the Bundesrat which can at least object to a bill adopted by the Bundestag. But this objection may be overruled by the Bundestag.131 If the content of TTIP touches matters which would require the consent of the Bundesrat were it a national law, the act of consent to the treaty requires the consent (and not only the “participation”) of the Bundesrat, too. The areas of legislation in which the consent of the Bundesrat is required for a bill to become law must be named as such in the Basic Law. One such area is state liability,132 which the TTIP would affect if a comprehensive dispute settlement regime is included in the treaty.
Influence of the Bundesrat on the German Representatives in EU Institutions
Not only the Bundestag, but also the Bundesrat must be informed by the Federal Government in matters concerning the European Union.133 In a different form and to a different extent, in comparison to the Bundestag,134 it shall participate in the decision-making process of the Federation, especially the representation of Germany in the Council as legislative organ of the EU,135 insofar as it would have been competent to do so in a comparable domestic matter, or insofar as the subject falls within the domestic competence of the Länder.136 The German Länder participate in matters concerning the European Union through the Bundesrat.137 The rules for this participation of the Bundesrat and the Länder are comprised in Article 23 paras. 4 to 6 and, in greater detail, in the Act on Cooperation between the Federation and the Länder in Matters Concerning the European Union.138 Relevant areas touched by TTIP may be certain professional rules in the context of liberalisation of the service sector which fall under the competence of the Länder 139 and rules concerning the cultural sector.140