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The Treaty on the Functioning of the European Union (TFEU) determines the powers of the institutions of the European Union (EU) to legislate and adopt legally-binding acts, also called competencies (Art. 2 TFEU). The EU has three types of competencies:
- Exclusive competencies– where only the EU can legislate (for example, customs unions, competition, monetary policy, and external treaty making).
- Shared competencies– where both EU and member states can legislate (for example, single market, employment, agriculture, fisheries, and the environment inter alia).
- Support competencies– where EU powers are limited to supporting, coordinating and complementing member states’ action.
The EU also has an overarching responsibility to coordinate economic, social and employment policy and to manage EU foreign and security policy. This blog post focuses on one type of EU exclusive competences, the adoption of international agreements (treaties).
When adopting treaties, the subject of the treaties may involve matters that are managed by member states (i.e. not EU competencies). These matters often fall within the powers of local and regional governments. For example, the EU has the competence to conclude treaties pertaining to trade (EU-only competence), even if the trade treaty deals with agriculture (shared competence) (Art. 207 TFEU). This can take away the voice of local and regional authorities and communities, which would otherwise have had an opportunity to express their sentiments on particular policy positions. The problem is that national representatives occupy the main EU institutions and often local and regional authorities do not have the chance to express firmly opinions about EU policies that affect them.
An illustration of this practice
The ongoing negotiations towards the so-called ‘post-Cotonou’ agreements described below help to illustrate the participation of EU citizens, and local and regional governments in agreements that fall within the exclusive competence of the EU.
A brief history– The EU has had a longstanding economic and trade partnership with 79 countries in Africa, the Caribbean and the Pacific (ACP), which started as the Lomé Convention, and later became the ACP-EU Cotonou Agreement in 2000. The Cotonou Agreement brings together over 1.5 billion people, and aims to increase trade and economic cooperation, political dialogue and boost sustainable economic development. The Cotonou Agreement will expire in February 2020, and in order to maintain the cooperation beyond its expiry, negotiations are underway for the conclusion of a new cooperation agreement.
The present– The so-called post-Cotonou agreements will broaden the scope of cooperation to include a comprehensive political agreement to respond to global challenges such as climate change, advance the achievement of Sustainable Development Goals, build stronger societies, boost trade and investment, increase efficiency of aid, as well as to address migration and mobility inter alia.
First, the post-Cotonou Agreement is an external trade treaty and so it falls within the exclusive competence of the EU and therefore will be concluded by the Council of the European Union (CoEU), the European Parliament (EP) and the European Commission (EC) (Art. 207, 208 TFEU). Second, a treaty of this nature affects local and regional affairs. For example, local and regional governments would have an interest in trade related matters that fall within their competences, such as agriculture. Thus, local and regional governments may have an interest in the policy on trade in agricultural goods, even though trade is an EU-only matter. Third, trade treaties have economic impacts on local producers. For example, increased liberalisation of trade in goods and services through reduced tariffs and reduced trade barriers can result in import surges, which may affect the price and availability of goods in the local markets. For the reasons alluded to above, it is important that regional and local governments have a voice in some EU-only processes.
Mechanisms of Participation in EU-only Agreements
The EP is responsible for approving international treaties with the Council of the European Union (CoEU) (Art. 218 TFEU). Kleimann and Kübek argue that the EP might become the ‘best-suited EU institution to provide EU trade agreement ratiﬁcation procedures with the necessary democratic legitimacy in accordance with the high standards of EP democracies’. This is because the EP is responsive to political participation of EU citizens. Interested persons or groups can lobby (or protest) the elected representative to the EU. This is important because the EP has decision-making power and can advance regional and local interests.
Secondly, the CoEU is the main institution responsible for the conclusion and signature of international trade agreements of the EU, without any need for national parliaments of member states to ratify these agreements. Consequently, as these are institutions formed by members of national governments they often advance national interests. Decisions are made by weighted-voting within the CoEU. However, this does not preclude member states from using domestic participatory processes to encourage public participation of local and regional governments and citizens in order to determine a position for their vote in the CoEU.
Thirdly, the European Commission (EC) is responsible for negotiating treaties. It proposes the policy issues and negotiator to the CoEU, and then the CoEU must approve the opening of negotiations and prepare a mandate for the negotiator. Thereafter, the EC and EP must vote on the treaty before it can become valid. In accordance with Art. 11(3) TEU, which provides that ‘the Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent’, the EC runs online public participations platforms. With regards to the post-Cotonou agreement, the CoEU authorised the Commission to open the negotiations. The Commission then created a platform for public participation in 2015, from which it compiled a report from various stakeholders including citizens, associations, companies, civil society organisations, think tanks, national governments, international organisations, and public authorities.
Fourthly, The CoR, which comprises of local and regional delegations from each of the 28 EU member states, 350 in total, has potential to influence treaty-making processes through its opinions, although they are not binding. Thus, EU citizens, and local and regional governments can lobby their representative to the CoR.
It can be concluded that although treaty making is an area of exclusive EU competence, local and regional governments and communities can indirectly participate in these processes by lobbying their representatives to the EP, CoEU, and CoR, and following the participatory mechanisms provided through the EC.
Axel Kaemmerer The Law of the EU Bucerius Law School, 2010)
Committee of the Regions ‘National Delegations’ available on https://cor.europa.eu/en/members/Pages/National-delegations.aspx (accessed 02 August 2019).
Council of Europe ‘Press Release’ available on https://www.consilium.europa.eu/en/press/press-releases/2016/06/01/epa-sadc/ (accessed 05 August 2019)
David Kleimann and Gesa Kübek ‘The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the EU: The Case of CETA and Opinion 2/15’ (2018) 45(1) Legal Issues on Economic Integration 22.
European Commission ‘European Commission ready to start negotiations for a new ambitious partnership with 79 countries in Africa, the Caribbean and the Pacific’ available on https://ec.europa.eu/europeaid/news-and-events/european-commission-ready-start-negotiations-new-ambitious-partnership-79-countries_en (accessed 05 August 2019).
European Council ‘Areas of EU Action’ available on https://ec.europa.eu/info/about-european-commission/what-european-commission-does/law/areas-eu-action_en (accessed 02 August 2019).
European Union ‘Council of the European Union’ available on https://europa.eu/european-union/about-eu/institutions-bodies/council-eu_en (accessed 05 August 2019).
|Dr Michelle Rufaro Maziwisa is a postdoctoral research fellow under the South African Research Chair in Multilevel Government, Law and Policy at the Dullah Omar Institute. Her passion is to advance economic development through law and governance and she is a women’s rights activist. She loves music, travelling, meeting new people, and learning new cultures.|