Brown Bag Seminar: "The impact of EU primary law on its trade agreements and their contribution to environmental protection"

Abstract

The European Commission is facing more and more difficulties to get recently negotiated free trade agreements (FTAs) accepted, first, by citizens and civil society associations and then, by national and European elected representatives.

Among the critiques of these agreements, my paper takes as a starting point the ones that are based on environmental concerns. The latter occupy an increasingly important place in the opposition to recent European Union (EU) FTAs and, given the environmental challenges ahead, one can expect that this evolution is likely to strengthen.

Environmentalists opposing EU FTAs highlight that trade-induced economic growth can conflict with ecological sustainability. In essence, they desire trade agreements that directly contribute to making EU external trade more environmentally sustainable.

In this context, one can wonder what influence EU Treaties have on the objectives of the EU trade policy as well as on the shape and the content of newly negotiated FTAs agreements. Do EU primary law provisions operate as constitutive rules for EU external trade agreements in the sense that they provide for their objectives and shape their content? If so, does that prevent the EU from using trade agreements for pursuing, for instance, environmental objectives? Under the current framework for EU trade policy, is environmental protection condemned to intervene as an exception or could it be an integral objective of these agreements?

The Treaty of Lisbon introduced significant institutional but also substantial changes in the law governing the external relations of the EU. These changes concern the scope but also the values and the policy goals underlying the EU trade policy. Furthermore, Opinion 2/15 of the Court of Justice of EU provided for critical findings regarding the objectives and the boundaries of the EU trade policy.

This paper will address the impact of broader EU external objectives, such as sustainable development, on defining the scope of the EU trade policy and the rationales for new external trade agreements. The debates over the boundaries of the EU trade policy reflect the increasing political contention over the purposes for which it ought to be used. If it is clear both that trade liberalization is not the overriding goal, and that trade instruments may be used to achieve other policy goals, to what extent (if at all) do EU Treaties define the goals of EU trade policy? More specifically, are EU Treaties a restrictive legal framework for EU external trade agreements, and, in particular, for their contribution to environmental protection? For instance, can environment-led trade instruments, be they unilateral or included in an international agreement, be adopted under this framework? These are the questions that my paper seeks to address.

As the question of the objectives of the EU trade policy is interlinked with the those of the scope and of the types of measures which can be adopted under this EU exclusive competence, I begin with by these two latter questions. I hypothesized that, by legally guaranteeing that future EU trade agreements play their role in the trade liberalisation process, EU primary law was one of the reasons why trade liberalization was necessarily taken as the main rationale of EU trade agreements, as opposed to, for instance, environmental protection.

However, I argue that, even though EU primary law provisions governing EU external trade agreements promote the objective of gradual trade liberalization, other objectives, notably environmental ones, must be pursued when concluding these agreements. Indeed, EU primary law provisions, as interpreted by the Court of Justice of the EU, require taking into account social and environmental objectives and can, thus, justify the adoption of trade regulating measures motivated by these non-trade objectives.

More info to follow. Keep watching this space!