This is from David Kleimann and Gesa Kübek, who attended the CJEU hearing on the EU-Singapore FTA, the case which will address issues of EU competence over trade and investment policy:
In the wake of the CETA-crisis, some commentators were quick to advocate for ‘EU-only’ treatymaking as the appropriate alternative to ‘mixity’ in order to mend the second category of problems we outlined above. ‘EU-only’ agreements, indeed, would do away with the political unanimity requirement for EU member states governments and subject national democratic deliberations and decisions on the approval of EU external treaties to qualified majority voting in the Council. As we have demonstrated in this article, however, treaty-making in the ‘EU-only’ procedure is, in the first instance, not a question of political preference, but a question of legal competence. It is the exact delineation of EU exclusive competences – codified in EU primary law and mirrored in constantly evolving EU secondary legislation - that determines whether the content of a treaty mandates ‘EUonly’ conclusion, or not.
The CJEU is set to clarify this delineation in its Opinion 2/15 judgement next year. In light of the Lisbon treaty expansion of the scope of the EU’s Common Commercial Policy, the Court will find a considerably broadened scope of EU exclusivity and hence facilitate the mandatory ‘EU-only’ conclusion of external agreements that, in their substance, fall within the scope of EU exclusive treatymaking powers. How far EU exclusive competences reach, in view of the Court, remains to be seen. After the publication of the judgement, in any case, EU institutions and member states will have clear guidelines for the design of mandatory or facultative ‘EU-only’ agreements. Political will permitting, this circumstance could greatly facilitate a more effective, reliable, and efficient external economic governance in the EU. Moreover, the judgement will clarify whether and which policy areas remain within the ambit of member states’ exclusive competences. Such clarity can render the legally viable limitation of the applicable scope of member states’ veto powers in regard of the signing and conclusion of mixed agreements, such as CETA, feasible in practice. A legally mandatory - or politically discretionary - shift from mixed to ‘EU-only’ treaty conclusion would certainly help mending second category governance failures.
Such a significant change of formal institutional practice, however, must not come at the expense of democratic accountability and representation. To the contrary, EU 2020 institutional practice needs to strengthen democratic governance of EU external trade and investment policy and reconnect to citizens’ concerns over economic policies in a representative, visible, and functional manner.
The achievement of this objective, however, requires a considerable re-think, adaptation, and a sense of ownership of national parliaments regarding the economic policy-making process in the EU. In pre-Lisbon institutional practice, national parliaments often only engaged in the political process long time after a respective mixed agreement was signed by national governments and, essentially, rubber-stamped agreements that were put before them for ratification. The run-up to the CETA signature has, somewhat ironically, shown early signs of the necessary and desirable shift of member states’ parliaments political engagement to the phase of the process where it is most needed for EUonly treaty-making. Prior to the signing of CETA, indeed, national parliaments have now made more extensive use of their constitutionally guaranteed role in national decision-making processes in a visible fashion. In context of ‘EU-only’ agreements, national parliamentary deliberation, scrutiny, and control of executive decisions ought to shift to this stage of the treaty-making process in order to endow QMV Council decisions on the signature and provisional application of EU economic agreements with democratic legitimacy. Vertical inter-parliamentary co-operation can help to build trust in EU commercial policy making. The EP INTA committee, for instance, is frequently informed about on-going policy and negotiation developments, holds similar information rights to those of the Council, has built an intra-institutional infrastructure for an efficient division of labour, and has greatly improved its informational capacity over the last years. The development of vertical - formal or informal - links between the economic affairs committees of national parliaments and the INTA committee in the EP can facilitate issue specific problem-solving, build mutual trust, and function as an early warning system in regard of potential political or technical roadblocks.