27 Sep 2017
Front-Loading Trade Policy-Making in the European Union: Towards a Trade Act
Article by Thomas Cottier in Marc Bungenberg, Markus Krajewski, Christian Tams, Jörg Philipp Terhechte and Andreas R. Ziegler (eds.) European Yearbook of International Economic Law 2017, published by Springer (2017), pp. 35-59
The shift to non-tariff measures and regulatory behind-the-border issues in commercial policy—and thus to matters traditionally pertaining to domestic law of Member States and the European Union—call for enhanced inclusiveness in policy-making. Such inclusiveness, under current rules of exclusive powers and mixed agreements, mainly focuses on the final stages of negotiations. It undermines the authority and treaty-making powers of the Union, frustrating legitimate expectations and trust of trading partners. Instead, major issues and debates on trade policy should be front-loaded and not taking place at the stage of consent and signature, prior to ratification and the adoption of implementing legislation. In assessing current procedures and its shortcomings under the practice of mixed agreements, the paper suggest developing and introducing a European Trade Act, perhaps called International Trade, Investment and Co-operation Regulation (ITICR). In comparison with, and referring to, the United States Trade Act, the paper expounds the potential scope and functions of a European Trade Act under the Lisbon Treaties and its assistance in achieving the goal of front-loading trade policy and investment policy debates within the Union. A Trade Act reduces the risks under the bifurcated system of exclusive and mixed competences of the Union in international economic law. It bears the potential to enhance inclusiveness and thus democratic legitimacy while at the same time supporting effective treaty-making powers of the European Union.