Different kinds of power

CETA sets up an extensive institutional architecture consisting of a CETA joint committee (Article 26.1) and a number of specialised committees (Article 26.2.1) which submit proposals to the CETA joint committee or take binding decisions themselves.

As already mentioned, the decision-making powers of these committees comprise diverse types of authority. In the typology of international delegation developed by Bradley and Kelly,Footnote ¹⁰ the committees are in the first place competent to exercise legislative powers as they may amend CETAFootnote ¹¹ or issue general rules.Footnote ¹² An amendment in this sense may also reflect the CETA joint committee’s power to change the institutional architecture of CETA, as it is competent to dissolve special committees or to establish new special committees which may alter or take over the powers of the special committees already provided in CETA (Article 26.1.5(a), (g) and (h) CETA); it may also establish ad hoc working groups according to Article 4.7.2. Second, the committees are mandated to adopt regulatory decisions, as they may create technical-administrative rules for implementing CETA,Footnote ¹³ or interpret CETA obligations with binding force (Articles 8.31.3, 8.44.3(a), 26.1.5(e) CETA). The CETA committees can decide on the applicability of exceptionsFootnote ¹⁴ and determine and establish mechanisms for the simplified negotiation of mutual recognition agreements.Footnote ¹⁵ The modification of annexes to CETA is one of the types of regulatory authority.Footnote ¹⁶ Some of the regulatory powers may have particularly far-reaching significance, such as deciding on the details for the mutual exchange of product warningsFootnote ¹⁷ which may include rules on the protection of personal data and the protection of confidential business data. The latter competence may enable the relevant committee to set common standards for implementation measures, which implies the exercise of (quasi) legislative authority. Third, the committees have adjudicative functions.Footnote ¹⁸

There are further competences of the committees that cannot be easily classified, as they cover fundamental aspects such as the replacement of the investment dispute system by a multilateral mechanism and the related transitional arrangements (Article 8.29 CETA).

Overall, this overview illustrates that the powers go beyond the mere executive implementation of obligations already enshrined in the agreement; they include decision-making on fundamental issues and even rule-making by generating norms and treaty amendments. Bearing this diversity in mind is important because the legitimacy requirements, in particular the degree of precision of the mandate and the parliamentary involvement required, differ according to the type and significance of the committees’ powers. We will return to this.

Decision-making of committees and their binding force

The CETA joint committee, as well as the specialised committees, must decide unanimously (Article 13.18.2, Article 26.3.3). The committees consist of representatives of Canada and the EU, usually the Commissioner responsible for trade (Article 26.1.1 CETA). The presence of representatives of the EU Member States is provided for only in some specialised committees.Footnote ¹⁹ Consequently, the committees are not actors independent from the parties’ will. They are, however, autonomous; they do not comprise all parties and their decisions are binding on the parties.

The binding force of decisions can be inferred from several circumstances. First, CETA distinguishes between decisions and recommendations (see e.g. Articles 26.1.4(e), 26.1.5(f) and 26.3.2). Second, any decision adopted by a committee will cease to be effective if the provisional application of CETA is terminated (Article 30.7.3(d)) – such a rule would be futile if the decision was a mere recommendation. Third, both Article 26.3.2 on the CETA joint committee and Article 26.2.4 on the specialised committees explicitly address the general binding effect of their decisions, as shown more explicitly below. Thus, in the vast majority of cases a decision of the CETA joint committee or of any of the specialised committees is binding on the EU and its Member States without further adoption or even ratification. This is envisaged in other EU treaties as well; it is not a peculiarity of CETA.Footnote ²⁰ An analysis of the co-operation rules in EU agreements shows that ‘decision’ is by far the most frequently used term to designate binding legal instruments; this corresponds to general practice under public international law.Footnote ²¹

Article 26.3.2, the general rule on the binding force of decisions of the CETA joint committee (see Article 26.1.4(e)), establishes the binding effect of its decisions and the obligation of the parties to implement them. However, in parenthesis, it contains the reservation of ‘the completion of any necessary internal requirements and procedures’. This formulation does not impose a ratification requirement on the parties and CETA does not define the internal procedures, which are governed by the internal law of the parties. The parties themselves must determine which procedures are relevant according to their national (in particular constitutional) rules on how international obligations become binding upon them.

For the EU, the internal procedures for entering into international commitments are spelled out in Article 218 TFEU. There is a normal procedure by which the Council decides, acting on a Commission proposal, on the conclusion of international treaties with involvement or even consent of the European Parliament according to Article 218(6). Article 218 TFEU also establishes specific, simplified procedures for agreeing to international rules in its paragraphs 7 and 9. Article 218(9) TFEU provides, inter alia, that the Council, again acting on a Commission proposal, adopts the position to be taken by the EU in a treaty body. In the case of simplified amendments to be adopted by a committee, Article 218(7) TFEU establishes an even more simplified procedureFootnote ²² whereby an amendment is agreed to by a negotiator (usually the Commission) which has been authorised to do so by the Council. Both rules constitute a derogation from the EU’s regular procedures. That the simplified procedure of Article 218(7) applies to the adoption of the CETA joint committee decision under Article 20.22 CETA to amend Annex 20-A, was a matter explicitly decided upon by the Council.Footnote ²³ Therefore, when Article 26.3.2 refers to internal requirements and procedures, this could either relate to the internal EU preparation of the decision of the CETA joint committee by means of a Council position adopted under Article 218(9), or to mandating the Commission, which is then allowed to express consent on behalf of the EU, as envisaged in Article 218(7) TFEU.

Accordingly, and generally speaking, decisions taken by the CETA joint committee immediately become binding on the parties under international law once adopted by it. The exercise of its decision-making powers is accompanied by the Council deciding the EU’s position in preparation of the adoption of the committee decision. The committee decision is not subject to subsequent approval by other EU or Member State institutions. Ratification is generally not a requirement for making committee decisions binding on the parties. The decisions become binding on parties merely by virtue of their adoption by the CETA joint committee. This understanding of Article 26.3.2 is further confirmed by the fact that, with regard to certain committee decisions, CETA expressly establishes the requirement of approval by the parties (see Articles 2.4.4, 5.14.2(d), 11.3.6), which would be superfluous if Article 26.3.2 CETA had already contained such a requirement.

One could contest this interpretation of Article 26.3.2 CETA, however. The parenthesis could be understood to require subsequent acceptance by the parties. Thus, both the German and English texts make the binding effect of the decision subject to the completion of internal requirements, seemingly as if these procedures were to be carried out after the committee’s decision. Read thusly, the decision would not be binding on the parties until additional consent had been granted under their internal procedures; the mere adoption of a decision by the committee would not be sufficient for its binding force on the parties. In that case, Article 218(9) TFEU would not apply since it only regulates the adoption of the EU’s position prior to decision-making by a committee. If one were to understand Article 26.3.2 CETA in this way, any detrimental effects of committee decision-making on national sovereignty or EU competences would be avoided, as the committee’s decisions would become binding on the parties only by virtue of their explicit consent afterwards. There are, however, two objections to such an interpretation. First, the parenthesis’ reference relates to the completion of ‘any necessary’ internal requirements and procedures. If the limiting clause establishes a requirement for parties to give their subsequent consent, why limit this to certain, i.e. necessary, cases? It is submitted here that the limiting clause merely states the obvious: it is the internal law of the parties that determines which domestic procedures apply. Hence, for the EU, the simplified procedures of either Article 218(7) or Article 218(9) TFEU apply. The second objection against understanding the parenthesis as a requirement for subsequent approval by the parties relates to the fact that CETA, in only a very few rules, explicitly refers to the approval of the parties (see above).

In sum, the general rule on the binding force of decisions taken by the CETA joint committee in Article 26.3.2 CETA provides for autonomous binding force on the parties. It cannot be understood as a reference to their ordinary treaty-making procedures. The simplified procedures of Article 218(7) or Article 218(9) TFEU apply. This finding is in conformity with EU practice in other agreements.

As regards the numerous specialised committees, the autonomous binding force of their decisions is regulated by Article 26.2.4 CETA, according to which the special committees take decisions when CETA so provides. In contrast to the CETA joint committee, the binding force of the decisions of the specialised committees is not explicitly stated. But this is not a bar to their binding force. The lack of an explicit statement on binding force is not a peculiarity of the CETA – there are other EU agreements that fail to explicitly clarify the binding nature of the decisions of their treaty bodies.Footnote ²⁴ The binding effect on parties can be deduced from the context, as is also the case with other EU agreements: CETA distinguishes decisions from recommendations, the latter being a non-binding form of action.Footnote ²⁵ Article 26.2.4 does not impose a requirement for ratification or subsequent acceptance by the parties for the binding force of the decisions to come into effect. On the contrary, some of the CETA provisions that envisage decision-making powers for the specialised committees explicitly establish a specific requirement to that effect.Footnote ²⁶ In those articles, parties’ consent by recourse to domestic procedures is expressly required (which, again, are not specified in any detail). These special arrangements confirm that the general rule of Article 26.2.4 CETA is that the decisions of specialised committees have binding force on the parties without further ado; it does not demand any subsequent acceptance or ratification by the parties. As in the case of the CETA joint committee, the decisions of the specialised committees are, in principle, binding upon the parties.

In conclusion, the autonomous binding force of the decisions by the CETA committees can be inferred from Articles 26.1 and 26.3 CETA, as regards the joint committee, and from Article 26.2, in particular Article 26.2.4 CETA, as regards the specialised committees. Apart from a few exceptions, their binding force does not generally depend on subsequent domestic approval or even ratification procedures. The treaty bodies’ decisions become binding on the parties upon their adoption (unless a different date of entry into force has been foreseen).

Conferral of public powers on committees

Along with independent binding decision-making competences, public powers have been transferred to the committees by the EU and its member states with the provisional entry into force of CETA.Footnote ²⁷ One could contend, however, that since decisions must be adopted unanimously (see above), their content is effectively shaped by the Council decision under Article 218(9) TFEU. Consequently, one might opine that it is the Council that exercises public powers and not the committees, and that decision-making by treaty bodies is nothing more than a simplified way for the Council to enter into international agreements,Footnote ²⁸ and therefore not a genuine transfer of public power by virtue of an EU mandate delegating it to the treaty bodies.Footnote ²⁹

There are, however, several factors that contradict such an understanding of the committees’ decision-making as a delegation to the Council. First, the deliberate inclusion in EU primary law of rules for decision-making in committees; the possibility of majority voting in international institutions; the binding effect of decisions simply by virtue of their adoption by treaty bodies; the fact that the Council can allow the EU representative in a committee a degree of discretion, which results in a bit of leeway for decision-making within the committee;Footnote ³⁰ and finally, the wording of Article 218(9) TFEU, according to which the bodies themselves are responsible for the adoption of acts having legal effects (and not for the acceptance of EU treaty proposals), all argue in favour of seeing the adoption of legal acts as an exercise of the public power conferred upon the treaty bodies. This, in Dashwood’s terms, is ‘an additional way of making E[U] law’.Footnote ³¹ Second, a Council decision under Article 218(9) TFEU would remain a futile exercise if there were no subsequent committee decision; the Council decision is merely a preparatory action, and is addressed exclusively to the EU representatives.Footnote ³² Third, it is the committees’ decisions that, in the view of the European Court of Justice, may influence the content of EU legislationFootnote ³³ and which form an integral part of the EU legal system.Footnote ³⁴ Hence, Article 218(9) and also Article 218(7) constitute special regimes for the adoption of secondary law within international organisations or treaty bodies.Footnote ³⁵ In the Court of Justice’s words: Article 218(9) provides by way of derogation from the ordinary procedure, ‘a simplified procedure for deciding on the positions to be adopted on behalf of the European Union … within a decision-making body [that adopts] acts applying or implementing that agreement’.Footnote ³⁶

Some might also contend that committee decisions are not the result of a transfer of power, as they are not directly effective within the EU or within any national legal order: they still need to be implemented by domestic authorities or legislators. This objection arises from the premise that an exercise of public function must be relevant not only for the parties to a treaty, but also within their domestic legal orders. Otherwise, a committee decision would be strictly an act under international law, binding on the parties on the international plane, relevant for and in inter-governmental relations, but not directly so for domestic actors. According to such a view, a transfer of powers would necessarily require that the resulting legal acts were directly relevant at the domestic level, within the domestic legal order of the parties, i.e. the EU and its Member States. Indeed, the CETA, contrary toother EU agreements, is not directly applicable pursuant to Article 30.6.1 CETA.Footnote ³⁷ Consequently, the decisions of CETA committees do not have direct effect beyond their international binding force.

The lack of direct effect, however, does not mean that there has been no transfer of powers. I make two arguments for this. First, the whole body of EU law is the result of a conferral of competences by the Member States to the EU. The EU Treaties perceive the exercise of EU competences as a result of conferred powers: see Article 4(1), Article 5(1), (2) TEU and Article 2(1), (2), Article 4(1) TFEU. Hence, what matters is the exercise of competences in a binding legal form, and not the direct effect of the legal acts adopted. Even though some EU competences were, and still are, limited to the adoption of directives in the sense of Article 288 TFEU (which are generally not directly effective), the relevant competencesFootnote ³⁸ nevertheless are the result of a conferral of powers.

Second, even though the direct effect of CETA is excluded,Footnote ³⁹ Article 216(2) TFEU still applies. Accordingly, EU institutions and the Member States are bound by international agreements entered into by the EU, and by their bodies’ decisions (even though the wording of Article 216(2) only pertains to agreements). It is a constant in the case law of the European Court of Justice (although, admittedly, not based on Article 216(2) or its predecessors) that those decisions form an integral part of EU law, since they are directly connected and the latter give effect to the former.Footnote ⁴⁰ Binding force under EU law means that the EU and the Member State institutions are not only obliged to implement the committees’ decisions under international law and by virtue of an international legal obligation, but also under EU law. The legal effect that Article 216(2) TFEU imparts on CETA would be disregarded by the above-mentioned view. Article 216(2) TFEU does not apply exclusively to directly effective international treaties.Footnote ⁴¹ Even though the exclusion of CETA’s direct effect clearly restrains its force within the EU and Member States’ legal orders, this does not mean – and due to Article 216(2) TFEU cannot mean – that CETA and its committees’ decisions do not have any legal effect at all within the EU and national legal orders.Footnote ⁴² The EU organs cannot deviate from Article 216(2) TFEU, nor are they able to exclude its legal effect in international agreements as Article 216(2) is primary EU law. One legal effect implied by this has already been mentioned: the implementation obligation is not only an international legal obligation but is also an obligation under EU law; the decisions and their legal effect become ‘unionised’.Footnote ⁴³ The EU and national institutions must pay respect to the CETA and its committees’ decisions. They must implement them;Footnote ⁴⁴ they must consider them when adopting secondary law.

Consequently, committee decisions are relevant facts for public institutions in the EU. They are legal facts that cannot be ignored under EU law even though they are not directly effective. EU and national institutions have a primary legal obligation to implement and respect them.

In consequence, the establishment of the competences of the committees is the result of exercising public authority and competence of the EU (and the Member States) to enter into international treaties. Likewise, the use of these competences, i.e. of decision-making powers that CETA grants to the committees, constitutes an exercise of public power, as the decisions adopted are legally binding on EU and national institutions, even though only to a limited extent when compared to directly effective EU agreements. Issuing binding and internally relevant decisions is an exercise of public power.

The European Parliament’s limited role in the conferral and exercise of power by the committees, and resulting legitimacy concerns

Up to this point, I have shown that Article 218(7) and (9) TFEU provide for simplified procedures for entering into international commitments based on mandates in EU agreements that confer public powers on treaty bodies. Under Article 218(9), these powers can be very extensive as their substance is only broadly described there (apart from the constraint concerning the institutional framework), but also under Article 218(7) even though it only applies to modifications to agreements. The legal significance of the treaty-body decisions is considerable, as they are binding under both international and EU law as soon as they are adopted by the treaty bodies; as shown above, only a very few CETA committee decisions require subsequent adoption or ratification by the parties in order to become binding upon them. As these powers – under CETA in particular – pertain to legislative and regulatory functions, one may wonder what the role of the European Parliament is in their conferral as committee’s decisions could interfere with its functions, especially if these decisions have an impact on political choices or if their implementation requires changes to EU legislative acts.

As already mentioned, Article 218(9) TFEU provides that a decision on the EU position in the decision-making of a committee is adopted by the Council acting on a proposal by the Commission; similarly, only the Council acts under Article 218(7) TFEU. In both instances, the European Parliament is not involved in the decision-making of the Council. Neither does a right of the European Parliament to approve a Council decision under Article 218(9) result from the substantive legal bases for Council decisions: as shown above, the EU’s external competences as established in Articles 207 and 217 TFEU form the substantive legal basis also for Council decisions under Article 218(9) TFEU, but their procedural consequences for entering into agreements for the involvement of the European Parliament (see Article 218(6)) do not apply to the decision-making of Article 218(9), as the latter rule is a lex specialis as such.Footnote ⁶¹

The European Parliament is merely informed of the positions under Article 218(10) TFEU; the information ‘at all stages of the procedure’ includes information on the positions taken by the Council in preparation of a decision taken by a treaty body. Likewise, the European Parliament is informed in the event the Council makes use of Article 218(7) TFEU with regard to agreements that require the European Parliament’s consent.Footnote ⁶² In the past, the immediate disclosure of a Council position to the European Parliament was explicitly provided for by Article 300(2) ECT Amsterdam/Nice.Footnote ⁶³ The provision of information to the European Parliament on such Council positions was not altered by the Lisbon Treaty even though it is no longer expressly mentioned. The Lisbon Treaty’s general information rule in Article 218(10) TFEU aims at increasing the information given to the European Parliament, and not at withholding information about Council positions on decision-making in treaty bodies from the European Parliament. Article 109 of the Rules of Procedure of the European Parliament gives it the ability to hold debates and issue recommendations (including requests to the Council) once the Commission has proposed a position to be adopted on the EU’s behalf in a treaty body. There are, however, no ‘comply or explain mechanisms’ in place regarding these recommendations, nor does the European Parliament have any say in the adoption of a Council decision taken under Article 218(9).

The exclusion of the European Parliament from involvement in Council decision-making in preparation of a treaty-body decision is rooted in tradition. The simplified procedures developed in certain instances before the introduction of Article 218(9) TFEU/300 ECT by the Amsterdam Treaty, intentionally left out any role for the European Parliament, as this was held to be impracticable due to the frequency with which such positions might be required.Footnote ⁶⁴ In the same vein, the formulation of Article 300(2) ECT, the predecessor of Article 218(9) TFEU, was drafted in such a way as to derogate from the role the European Parliament had in concluding international agreements (apart from the exception with regard to changes to the institutional framework).Footnote ⁶⁵

Hence, it is the Council alone that – based on a Commission proposal – determines the EU’s position and therefore shapes the content of treaty body decisions for the EU. As treaty body decisions become binding once adopted, the Council decision-making under Article 218(9) that determines the EU position to be presented by the EU representative in the committee is the last stage at which the substance of a CETA committee decision with binding effect for the EU legal order can be influenced (or its adoption even avoided) on behalf of the EU. The European Parliament has no say in this respect. Decisions of the committees may, however, create new rules by way of their legislative and regulatory function whose adoption would have been a competence of the EU legislature, i.e. a joint competence of the Council and the European Parliament. In the same way, if a committee decision requires the adoption of implementing rules by the EU legislature, the European Parliament might, without prior involvement, be bound by the substance of the committee decision. Hence, the conferral of powers to treaty bodies could circumvent essential procedural rules established in EU primary law.Footnote ⁶⁶

Such concerns are not assuaged by the participation of the European Parliament in the decision-making of the committees themselves. CETA does not grant any role to parliaments in the decision-making processes of its committees. The EU is represented, as has already been shown, by the Commission. Nor does CETA provide any other accountability mechanism with regard to committee decision-making.Footnote ⁶⁷ The internal rule-making procedures of the EU do not provide the European Parliament with any status (e.g. as observer) in CETA committees.Footnote ⁶⁸

The legitimacy of committee decisions might ultimately be rooted in the European Parliament’s consent to CETA. The European Parliament is involved in the delegation of powers to treaty bodies as these powers are determined by the enabling EU agreement. By consenting to the empowering treaties (as required under Lisbon rules to a considerably greater extent than previously),Footnote ⁶⁹ the European Parliament also agrees to the treaty-body decision-making mandates provided therein. From a formal perspective, the public powers of the committees would appear to be legitimate as they have been the subject of parliamentary decision.

Nevertheless, considerable concern remains as to the legitimacy of the treaty bodies’ exercise of powers pertaining to legislative or regulatory functions or that have fundamental political importance or significance for individuals, as the European Parliament’s general consent to a treaty might not convey sufficient legitimacy to such mandates. From a substantive perspective, the more precisely treaty-body mandates are defined by the treaty (i.e. the more detailed the content of their decisions is prescribed in substantive terms in the treaties), the more legitimate general European Parliament consent to the treaty makes them. A substantive assignment of legitimacy in this way can only work if the content of a decision is pre-specified by substantive prescriptions of the European Parliament or with its approval. The density of the substantive prescriptions for treaty-body decisions is therefore decisive for the level of legitimacy conveyed by the European Parliament. If and insofar as these prescriptions are imprecise because the treaty assigns wide discretion to its bodies, the European Parliament’s consent merely conveys formal – but not substantive – legitimacy. The legitimacy concerns are all the more founded given the CETA committees’ regulatory and even legislative functions. In this sense, the decisions do not merely spell out specifications already laid out in the CETA text. The different categories of public power mandated to the CETA committees prompt the need for differentiation when examining the requirements of their legitimacy.

Legitimacy requirements must take the significance and relevance of a decision into account. The more profound the consequences of a decision, the more important the tasks and powers assigned to the decision-making body, and the more leeway it enjoys, the greater the legitimacy demands. This means that general consent to an open-termed mandate is not sufficient for vesting legitimacy in the exercise of rule-making powers by a committee. Conversely, legitimacy requirements are negligible if the exercise of power does not lead to externally binding decisions nor affects the rights of individuals. The absence of supervisory and control structures to oversee international institutions may in turn increase legitimacy demands. The link between the extent of the powers transferred and the level of legitimacy requirements has been stated by the German Constitutional Court: ‘The constitutional requirements placed by the principle of democracy on the organisational structure and the decision-making procedures … depend on the extent to which sovereign responsibilities are transferred … and the degree of political independence in the exercise of the … powers transferred. … [T]he level of democratic legitimation [must be] commensurate with the extent and importance of supranational power’.Footnote ⁷⁰ This is transferable to the present context of democratic requirements for the conferral of powers by the EU, all the more since the European Court of Justice, in conceiving the principle of democracy in the EU, draws from the traditions of national democracies.Footnote ⁷¹ The fundamental insight to be gleaned here is that a lack of precision in the definition of extensive, significant powers conferred on treaty bodies makes it even less likely that the European Parliament’s consent to the treaties can grant the powers sufficient democratic legitimacy. The mandates must be specifically set out and clearly described in the empowering treaty provision, as a requirement of democratic legitimacy.Footnote ⁷²

Thus, there may be constitutional constraints or safeguards (such as control rights, or a requirement of specificity of mandates) for the transfer of extensive powers to treaty bodies such as to the CETA committees). Before these are explored in the next section, a few potential objections need to be addressed.

Sufficient legitimacy by the Council?

One argument against the above legitimacy concerns that arise due to a lack of European Parliament participation could be the fact that the sole competence of the Council under Article 218(7) and (9) is in perfect alignment with EU democracy requirements; the European Parliament is not the sole law-maker in the EU and the Council performs executive functions, in particular in the area of external relations which is not the role of a parliament.

Under EU law, according to Article 10(2) TEU the democratic legitimation of EU legal acts rests on two pillars, namely the Member State representatives in the Council who are accountable to their constituency and the legitimacy ensured by the European Parliament, the latter being the genuine supranational pillar. In these ways, EU primary law emphasises that the exercise of public authority must be traceable to the will of the people (referred to as national citizens and EU citizens; there is no European demos) and not only to the domestic governments represented in the Council. Even though Article 10(2) in this way expresses that the dual structure of legitimacyFootnote ⁷³ is one of the more distinctive elements of the EU multilevel system, one cannot directly draw conclusions from this principle on the correct allocation of accountability mechanisms between the two pillars. In the present context of transferring powers to committees, one could, however, state that since decisions on the EU position in treaty bodies are adopted by the Council acting alone and the European Parliament does not have a say, democratic legitimacy predominantly rests upon the Member State pillar.

The genuine supranational pillar conveys legitimacy to treaty-body decisions only to the extent that the empowerment of a treaty body in an agreement has been subject to European Parliament assent. As shown, this supranational pillar conveys only very limited legitimacy, the sufficiency of which appears to be highly doubtful with regard to the conferral of legislative and regulatory powers to CETA committees. Legislative and regulatory powers and their delegation are, within the EU, shared between the Council and the European Parliament. The concrete shape of the dual legitimacy of the exercise of public powers in the EU depends on the concrete allocation of powers between Council and European Parliament in a given policy field. Therefore, when assessing whether decision-making on the exercise of powers conferred to a treaty body by the Council alone conforms to EU standards of legitimacy, it is essential to explore the issue-specific internal, domestic, allocation of power between European Parliament and Council instead of trying to draw abstract conclusions from the principle of dual legitimacy. On a theoretical level, one could postulate that the legitimacy bestowed on a legal act is greater if the European Parliament contributes to it. The European Parliament is indeed the forum for pluralistic deliberation of political issues in which diverse aspects of common interest to the EU can be fed into the rule-making procedure. The European Parliament’s political composition engenders transnational discourse. In contrast, the Council predominantly represents domestic governments and hence a majoritarian political approach.Footnote ⁷⁴ This theoretical account of higher legitimacy of the European Parliament’s contribution is reflected by the development of EU primary law in which the EU’s legitimacy has been increased by incrementally expanding the European Parliament’s rights at the expense of the Council.

Irrespective of such a theoretical account, under EU law as it presently stands one has to analyse the allocation of powers between Council and European Parliament in order to find an answer to the above question. The general allocation of functions between Council and European Parliament is determined by the typology provided by Articles 14 and 16 TEU and, with regard to external relations, by Article 218 TFEU. Accordingly, the Council and the European Parliament jointly exercise the basic parliamentary functions of legislation and budgeting. In addition, the European Parliament constitutes a control and advisory body, while the Council defines and coordinates policy. In the area of external treaty relations, while the Council is the treaty-making body, the European Parliament exercises a supervisory function as a result of its right to information; it has far-reaching political functions as well in relation to certain agreements whose conclusion by the Council require its consent (see Article 218(6) TFEU). The European Parliament makes effective use of the consent requirement and its information rights and contributes to policy formation in informal ways, all of which allows it to co-determine the substance of any treaty under negotiation.Footnote ⁷⁵ Article 218(6) hence establishes ‘symmetry’ between the European Parliament’s involvement in legislation and treaty-making ‘in order to guarantee that the Parliament and the Council enjoy the same powers in relation to a given field, in compliance with the institutional balance provided for by the Treaties’.Footnote ⁷⁶ Thus, in trade policy the European Parliament exercises a considerable political function, almost equivalent to the Council’s, again resulting in joint competence.

Consequently, postulating – based on a literal reading of Article 218(9) – that the Council might be solely competent under EU law to decide on the exercise of broad legislative or regulatory mandates by treaty bodies such as CETA committees would not appear to be in keeping with this joint allocation of powers to Council and European Parliament in legislation, delegation and treaty-making.

A recent decision from the European Court of Justice seems to contradict this conclusion. Germany had complained that the Council could not adopt decisions under Article 218(9) TFEU if this resulted in a circumvention of the ordinary legislative procedure and thus, a violation of the rights of the European Parliament. In response, the Court merely stated that the wording of Article 218(9) did not limit EU action ‘to situations where it has previously adopted rules in accordance with the ordinary legislative procedure’.Footnote ⁷⁷ While this statement was correct, it failed to address the concerns behind Germany’s claim. In this case, the Court did not need to delve any deeper into the issue, as the mandates of the OTIF Revision committee at stake did not encompass legislative functions, but only the competence to propose (rather than decide upon) modifications of the Convention concerning international carriage by rail that still required, for their entry into force, approval by the General Assembly and then by the parties individually.

Searching for EU standards on delegation in external relations

The above legitimacy concerns can be confirmed by exploring the constitutional principles for conferring powers to international decision-making bodies. Democracy and institutional balance in the EU place restrictions on delegation to treaty bodies similar to those on internal delegation. The principle of democracy in the EU comprises protecting the European Parliament’s prerogatives,Footnote ⁷⁸ which implies a prohibition against transferring fundamental issues to other branches of government apart from the legislative, and a prohibition against unspecified delegation. Furthermore, the delegation of rule-making to executive institutions requires democratic control. These restrictions on (internal) delegation under EU law amount to an EU (non-)delegation doctrine.Footnote ⁷⁹ While emanating from Articles 290 and 291 TFEU, they are reflected in the Meroni case law and also apply to external relations, as Article 218(9) TFEU indicates.

The internal assignment of powers between the executive and legislative branches of the EU reflects the principle of limitation on the delegation of public powers to the executive under EU law. The limitations to and conditions for the delegation of rule-making to the executive ensure democratic legitimacy and control. Article 290(1) TFEU imposes a rather strict limitation on delegation by the legislature which must reserve for itself the provision of the ‘essential elements’ of a policy; this cannot be delegated. ‘Essential elements’ is of course not a straightforward concept, but it has been developed in the case law of the European Court of Justice and there has been a principle of legislative reservation since before Lisbon. Essential elements are reserved to the EU legislature because of their political nature; they comprise political or strategic decisions on the fundamental orientation of Union policy. Such decisions require immediate democratic legitimation as they imply wide discretion, in particular the need for political choices that weigh potentially conflicting policy aims and interests.Footnote ⁸⁰ Not entirely negligible interferences with fundamental rights amount to essential elements of a policy as well.Footnote ⁸¹ As regards non-essential elements (i.e. specification of regulatory details and technical aspects of legislation), the EU legislature is competent to unburden itself of their regulation by delegating rule-making to the executive (i.e. the Commission). This is, however, subject to two requirements. First, the legislature must define the objectives, content, scope and duration of the delegated rules: Article 290(1) subparagraph 2 TFEU; undefined delegation is prohibited.Footnote ⁸² Even prior to Lisbon and Article 290 TFEU, the European Court of Justice demanded that the scope of powers and the criteria for their exercise be set out in the legislative act with a certain degree of specificity; they needed to be determined and circumscribed quite precisely.Footnote ⁸³ Second, delegation must be accompanied by control mechanisms, i.e. Parliament’s right to revoke the delegation or to reserve a veto so that it can review the exercise of the delegated powers and of any discretion transferred: Article 290(2) TFEU. Such mechanisms act as a counterbalance to derogation from the principle of separation of powers inherent to the delegation of public powers and thus ensure observance of the requirements of democratic legitimacy.Footnote ⁸⁴

The conferral of implementing powers to the Commission must be provided for by an enabling act as well. Implementing acts are subject to scrutiny by the Member States according to legislative rules adopted by the Council and the European Parliament in Regulation 182/2011 in accordance with Article 291(2), (3) TFEU. In this way, the EU legislature is also involved in the allocation of implementing powers.Footnote ⁸⁵

These provisions prove that the European Parliament cannot with further ado deprive itself of its rule-making powers. Delegation of rule-making is subject to procedural and substantive safeguards which amount to a parliamentary reservation. Article 290 TFEU implies a constitutional requirement to adopt a specific legislative act, with controlling powers for the delegator.

Admittedly, such safeguards for the European Parliament’s legislative and control competences are not explicitly provided for by EU primary law with regard to conferring decision-making powers to treaty bodies. A comparative constitutionalist justification for this might refer to the peculiarity of external relations as a traditional domain of the executive. The position of the executive in this policy area is historically fundamentally stronger than that of parliaments.Footnote ⁸⁶ Consequently, safeguards for democratic legitimacy are commonly held not to be required to the same extent as in the case of domestic internal decision-making, regulation or legislation. Lower standards with regard to legitimacy requirements are therefore thought to be acceptable, at least as far as decision-making involving technical aspects, regulation of details and administrative functions is concerned. The traditional predominance of the executive in foreign affairs, however, can no longer be justifiably claimed after the strengthening of the position of the European Parliament in external relations by Lisbon, specifically in the area of trade policy. As shown in the previous section, the European Parliament now also has a strong political role in the negotiation and conclusion of trade agreements, making it almost the equal of the Council in this respect.

The Meroni case law confirms the existence of inherent limitations to the delegation of powers that are a feature of the institutional balance within the EU and hence to democratic requirements, even though Meroni itself does not explicitly refer to democratic legitimacy. Institutional balance is an EU-specific form of the separation of powers brought about by the limited distribution of responsibilities to the EU institution concerned, resulting in a specific assignment of public functions under EU primary law (see Article 13(2) TEU). This implies a reciprocal obligation for each of the EU institutions to respect the competences of the other and the boundaries of its own competences,Footnote ⁸⁷ and comprises demands for the democratic legitimation of the exercise of public power.Footnote ⁸⁸ In Meroni, the European Court of Justice spelled out the limitations on the delegation of authority based on the principle of institutional balance (initially ‘balance of power’) with regard to the transfer of decision-making powers to institutions outside EU primary law which restrain the freedom of EU organs to delegate discretionary powers.Footnote ⁸⁹ The guiding principles of Meroni are still pertinent when assessing the powers of EU institutions as the European Court of Justice applied them to delegation of the power to amend legislative actsFootnote ⁹⁰ (which now follows from Article 290 TFEU) and recently with regard to the delegation of regulatory powers to agencies.Footnote ⁹¹

The first stipulation of Meroni requires that a transfer of power be limited to ‘clearly defined executive powers’,Footnote ⁹² the exercise of which must be carried out under strict observance of objective criteria determined by the delegating authority, without granting a wide margin of discretion.Footnote ⁹³ Use of the powers has to be supervised by the delegating authority (cf the parallels with control mechanisms in Article 290(2)). The delegated powers must therefore be exercised within a precise, detailed regulatory framework of delegation. Second, delegation must not ‘bring about an actual transfer of responsibility’, which would be the case if the delegatee enjoyed such a degree of latitude that it actually exercised a political function that EU primary law had allocated to an EU institution. Hence, a transfer of power must not conflict with the division of powers provided for by the TEU/TFEU.

One might object that the Meroni principles have not, strictly speaking, been formulated with regard to treaty bodies. Indeed, there are considerable differences that speak against their transferability in the present context. Treaty bodies are not administrative institutions within the internal market, and they are furthermore foreseen in primary EU law (i.e. Article 218(9)). Nevertheless, these principles also appear to be relevant for the delegation to treaty bodies.Footnote ⁹⁴ If the delegation of power within the EU is subject to constraints, these constraints would appear to be even more necessary when conferring powers to institutions created under international law that owe no democratic accountability to any EU institution. Articles 290 and 291 TFEU provide for the delegation of powers solely or mainly to the Commission, i.e. an EU institution that is ultimately accountable to the European Parliament, a circumstance that contributes to the democratic legitimacy of delegation under these rules.Footnote ⁹⁵ The fact that the binding decisions of treaty bodies are not directly applicable, meaning that they require implementation by the European Parliament or national parliaments, is no compensation for the loss of democratic accountability; parliaments may be forced to implement them without any substantial leeway.

Consequently, the Meroni requirements apply to the present constellation and run parallel to the stipulations provided in Article 290. The first Meroni stipulation equates to the Article 290(1) requirement of precision in the description of the delegated authority. It requires the delegating EU organ to set out in precise terms which powers are being conferred to a treaty body. The second Meroni stipulation requires respect for the allocation of responsibilities under EU primary law. This translates in the present context – i.e. making use of the simplified procedure under Article 218(9) to enter into international obligations – into respect for the functions of the European Parliament, which is reflected by the establishment of control mechanisms by Article 290(2). Use of the simplified procedure must neither undermine treaty-making or legislative functions nor interfere with the control competences of the European Parliament with regard to executive rule-making. There would be considerable tension with the functional assignments of power between Council and European Parliament identified above if the approximate equilibrium of power between them in internal legislation and external trade-treaty-making were undermined by extensive use of the simplified procedure under Article 218(9). This suggests that the powers of the treaty bodies should be limited to decisions of an administrative or executive nature that serve to concretise the terms of an agreement. This would conform to the European Court of Justice’s description of the functions of the treaty bodies already cited above: ‘applying or implementing that agreement’.

If the treaty bodies, however, were able to adopt rules of general application that obligated the European Parliament (or the Commission by virtue of a mandate under Article 290) to amend secondary EU legislation accordingly – without the European Parliament having had the opportunity to pre-programme and control their content – the treaty bodies would then in effect be exercising regulatory or even legislative functions; the division of functions between the Council and the European Parliament would then be infringed upon. Therefore, the lack of involvement of the European Parliament in the Council decision-making on EU positions to be adopted in treaty bodies, and the lack of European Parliament control over the treaty bodies and the Council, militates in favour of limiting the scope of powers conferrable in this way to those that suit the type of public power attributed to the Council and that do not undermine the European Parliament’s functions.

The fundamental principle of legislative reservation – according to which important, essential elements of policy remain exclusively with the legislature – also applies to external relations, as is confirmed by Article 218(9) TFEU. Article 218(9) expressly provides that its simplified decision-making procedure on decisions of treaty bodies does not apply to the acts of treaty bodies that ‘supplement or amend the institutional framework of the agreement’. Application of the simplified procedure is ruled out for institutional changes to an agreement, which are instead subject to the ordinary treaty making procedure.Footnote ⁹⁶ In the case of trade agreements or agreements establishing cooperation procedures, the ordinary treaty making procedure requires the consent of the European Parliament pursuant to Article 218(6) TFEU. Consequently, the exception in effect places limitations on which powers are conferrable on treaty bodies. Treaty bodies are not permitted to amend the institutional structure by way of establishing new treaty institutions or by changing the competences of the envisaged institutions.Footnote ⁹⁷

Requiring that the ordinary treaty-making procedure be used for the adoption of institutional change safeguards the prerogatives of the European Parliament and the institutional balance in the EU.Footnote ⁹⁸ This exception appears to be motivated by an intent to exempt ‘particularly important decisions’Footnote ⁹⁹ from the scope of simplified procedures; these should apply only to ‘minor and quite technical amendments’.Footnote ¹⁰⁰ Hence, the exception in Article 218(9) excludes fundamentalFootnote ¹⁰¹ changes from simplified procedures and thus reflects the exclusion of important, essential decisions from delegation to executive institutions, as under Article 290 TFEU, also with regard to external relations. Consequently, ‘particularly important decisions’ cannot be the subject of a mandate to treaty bodies. Since the exception serves to safeguard the competences of the European Parliament, it should be conceived broadly rather than narrowly so that the determination of amendments to the institutional framework of an agreement can be informed by the meaning of ‘essential elements’ expressed in Article 290 TFEU. Accordingly, rule-making on fundamental issues must not be conferred to treaty bodies at all as this is part of the joint treaty-making or legislative function reserved for the European Parliament and the Council.

Identifying an EU (non-)delegation doctrine and consequences for CETA

The above deliberations demonstrate that democracy and institutional balance concerns are the underlying cause for the explicit limitations to delegation enshrined in Articles 290 and 291 TFEU, the Meroni principles and Article 218(9) TFEU. The limitations apply both to internal and external decision-making, i.e. decision-making at the international level by virtue of authority delegated by the EU to international bodies; these rules and principles, taken together in an overall assessment, lay the foundation for a general delegation doctrine in EU law. As the limitations to delegation are founded on constitutional principles of institutional balance and democracy, they are implicitly present in any conferral of power by the EU. This is not limited to external trade relations, as the parallelism of the European Parliament’s legislative and treaty-making powers and the symmetry of the Council’s and the European Parliament’s competences apply to all treaties that establish a ‘specific institutional framework’ (Article 218(6)(iii)). Democracy and institutional balance requirements result in consistent, common limitations to any delegation of powers: non-delegation of the essential,Footnote ¹⁰² and apart from that, specificity of conferred powers, both of which advise against granting wide discretion to the delegatee. Accordingly, deciding on essential issues is not transferable to treaty bodies. Conferred powers, or even mere executive decision-making, must be circumscribed and determined precisely in the enabling act, i.e. the agreement. The scope of the powers and the criteria for exercising them must be set out in the enabling treaty provision with a certain degree of specificity. In addition, rule-making of general scope or decision-making powers that allow wide discretion cannot be conferred to treaty bodies without assurances for the competencies of the European Parliament such as control mechanisms that can ensure the legitimacy of the substantive content of the treaty-body decisions. In short, one can identify three principles of delegation that also prevail in external relations: the essential is not delegable but must be provided for by the treaty; mandates for autonomous, binding decision-making by treaty bodies must be specific; any exercise of power beyond simple implementation measures must be subject to control by the European Parliament.

Applying these principles to the mandates extended to CETA committees yields the insight that the rule of Article 218(9) TFEU should not raise concerns if it is applied to the conferral of precisely delineated implementation powers to CETA committees – without broad discretion and limited to a mere concretisation function.

Decisions of fundamental importance, however, cannot be the subject of conferrals of power under the procedure of Article 218(9) if the decision-making criteria have not been clearly set out in CETA and hence had not been specifically consented to by the European Parliament. Therefore, the competence of the CETA joint committee under Article 8.29 CETA to transfer investment protection to a multilateral investment court is not legitimate since CETA sets requirements for neither ethical standards nor for safeguards for the independence and impartiality of the members of the Court and the applicable procedures of that Court. The decision as such was fully granted to the committee without any parliamentary control and without determining its conditions.

The explicit exclusion by Article 218(9) of institutional changes from the powers conferrable on treaty bodies means that Article 26.1.5(a), (g), (h) CETA – which empowers the CETA joint committee to amend the responsibilities of specialised committees, provide for new responsibilities or establish new specialised committees and bilateral dialogues in order to assist itFootnote ¹⁰³ – cannot be conferred under the simplified procedure. Such changes to CETA must be adopted by the EU by means of the ordinary treaty making procedure, which requires European Parliament approval; application of Article 218(9) TFEU would be an infringement of EU law.

The same applies to certain of the rule-making competences of CETA committees. Article 21.7.5 CETA allows the provision of fundamental issues to a CETA committee by which the committee is empowered to establish the conditions and criteria for the exchange of product warnings, including specification of the information to be exchanged and the modalities of exchange. These rules must respect confidentiality and protect sensitive business and personal data; they could potentially interfere with fundamental rights. CETA, however, sets no standards insofar as, even though with regard to data protection, for example, Article 8(3) EU Charter of Fundamental Rights implies an obligation by which data must be retained within the EU to enable the requisite data protection control.Footnote ¹⁰⁴ Implementation of a committee decision under Article 21.7.5 CETA might require changes to EU Directive 2001/95 on the Community rapid information system; the European Parliament would be bound in spite of not having participated in the committee decision enactment.

Autonomous rule-making mandates in Articles 8.28.7 and in Article 8.44.2 and 3 b) CETA also raise concerns with regard to the above principles. Article 8.28.7 allows for the enactment of procedural rules concerning certain administrative and organisational aspects of the functioning of the Appellate Tribunal. Under Article 8.28.7 g), the CETA joint committee is given broad leeway to set out ‘any other elements it determines to be necessary for the effective functioning of the Appellate Tribunal’. The content and substance of these rules are not pre-defined; it is up to the committee itself to determine which rules might be necessary. It consequently enjoys a very wide range of discretion. Likewise, the autonomous rule-making authority of the CETA committee on Services and Investments under Articles 8.44.2 and 8.44.3(b) CETA lacks specificity with regard to a code of conduct for Tribunal Members and with regard to dispute settlement and transparency rules. Due to a lack of any precise conditions for the exercise of these decision-making powers by committees combined with a lack of any effective parliamentary control over their usage, their degree of legitimacy would be insufficient to allow a conferral of power by the EU by means of the Article 218(9) TFEU procedure without the European Parliament being given a decisive say in the exercise of these mandates.

Limiting the scope of simplified procedures

One way to safeguard the European Parliament’s legislative and control functions within the EU democratic order would be to make all rule-making by treaty bodies subject to the requirement of consent by the European Parliament. Such a consent requirement would automatically ensue if one were to apply the normal treaty making procedure of Article 218 TFEU to such treaty-body decisions instead of the simplified procedures provided by its paragraphs 7 and 9. Consequently, treaty bodies would not have autonomous binding decision-making competences as such. Instead, their decisions would require consent by the European Parliament in order to enter into force – even under international law. This remedy might not comport with the intentions of the parties in setting up treaty bodies and it would complicate procedures. In particular, if the decisions of a treaty body related to a policy for which the Member States still enjoyed a degree of competence, European Parliament consent alone would not suffice; the consent of the national parliaments might be required in addition.

As has been shown, democratic and institutional balance requirements do not demand such a comprehensive bar against all rule-making by treaty bodies. Only the ability to autonomously engage in general, abstract rule-making, hence quasi-legislative rule-making on essential elements of policy including considerable interferences with fundamental rights, is barred from being transferred to treaty bodies. The exercise of such public powers is reserved for parliaments and the simplified procedures must not apply. Beyond this, there are no constitutional demands to limit the scope of simplified procedures as long as other constitutional requirements, i.e. the specificity of the delegation and parliamentary control, have been met. Consequently, for rule-making or single-case decision-making that remains below the essential elements threshold, other ways of effectively safeguarding the European Parliament’s effective control powers (beyond information and debate) may suffice.

Additional safeguards to the democratic legitimacy of simplified procedures

The constitutionally grounded requirement of specificity (see above) demands that the scope of the transferred powers and the criteria for their exercise by the treaty bodies be determined and circumscribed precisely in the enabling treaty provision. Additionally, control mechanisms are required to enable the European Parliament’s effective oversight of the use of rule-making powers or powers granting wide discretion. The control powers of the European Parliament must be strengthened in order to direct the exercise of public powers by the treaty bodies, in particular if decisions by the treaty bodies could interfere with EU legislation. An additional benefit of increased involvement and control by the European Parliament is that such control powers over the treaty bodies’ decision-making may prevent too extensive a reading of their powers, or even self-empowerment.

These mechanisms could conceivably function at two levels, the international and the domestic, internal EU levels, alternatively or cumulatively. At the international level, this would translate into involvement by the European Parliament in the autonomous decision-making of treaty bodies. One way of achieving this would be to regard Members of the European Parliament as part of the EU representation in the treaty bodies, or at least to grant them observer status. The current Framework Agreements foresee European Parliament Members as observers at international conferences, as part of the EU delegation.Footnote ¹⁰⁵ This possibility could be expanded to include observer status for the European Parliament in treaty bodies of EU Free Trade Agreements. In this way, the European Parliament would receive direct information regarding the processes within the treaty bodies, which would contribute to the effectiveness of the European Parliament’s control over them.

At the domestic level, such mechanisms would require the involvement of the European Parliament in the preparation of the EU position pursuant to Article 218(9) TFEU. At the very least, this would entail making sure that the European Parliament received complete and timely information at all stages of the procedure (Article 218(10) TFEU) with regard to envisaged treaty-body decisions. One could, for instance, allow the European Parliament to formulate binding recommendations for the Commission in drafting proposals for Council decisions pursuant to Article 218(9),Footnote ¹⁰⁶ or at least make the Commission subject to an obligation to state its reasons for not taking the recommendations into account.Footnote ¹⁰⁷ The full provision of information to the European Parliament by the Commission before agreement modifications authorised by the Council under Article 218(7) TFEUFootnote ¹⁰⁸ can be approved, must be expanded to include Article 281(9) TFEU.

Another, much more promising way of increasing control by the European Parliament with regard to international rule-making in treaty bodies would be to require formal European Parliament involvement in Council decision-making pursuant to Article 218(9) TFEU. If a decision involved rule-making, in particular if it required – for its implementation – any change to EU legislation, the European Parliament would need to be granted a right of consent. The expansion of the European Parliament’s rights brought about by the Lisbon Treaty has led to considerable enhancement of its role in legislation, budgeting and treaty-making, but the simplified procedure of Article 218(9) has not been amended to reflect this change.Footnote ¹⁰⁹ If the European Parliament’s consent to the Council decisions were required, this deficit would be corrected. This change would not require an amendment to the EU Treaties; it could be implemented by the Council decision on the conclusion of the EU Free Trade Agreement, in which a framework could be established which prescribes the European Parliament’s involvement in the procedures under Article 218(9). Alternatively, a Framework Agreement between the Council and the European Parliament could establish a general requirement for Council decisions under Article 218(9).

Keeping legal certainty in mind, the more preferable solution would be to adopt a general regulatory framework for the implementation of the treaty-body decision-making provided in EU Agreements. A legislative regulation could be enacted by virtue of Article 207(2) TFEU that provides the additional safeguards proposed here.Footnote ¹¹⁰