The Conclusion and Implementation of EU Free Trade Agreements
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The Conclusion and Implementation of EU Free Trade Agreements

Constitutional Challenges

Edited by Isabelle Bosse-Platière and Cécile Rapoport

This timely book gives an overview of the main legal issues the EU faces in negotiating, concluding and implementing so-called ‘New Generation’ free trade agreements. Featuring contributions by international specialists on EU external action, this book demonstrates why these FTAs have become challenging for the EU, as well as analysing how the EU has dealt with its institutional constraints, and addresses contemporary debates and future challenges for EU institutions and Member States.
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Chapter 12: Joint organs in EU free trade agreements as a threat to democracy

Wolfgang Weiß

Abstract

The EU FTAs establish common organs that have specific and binding decision-making competences which the agreements provide for the sake of facilitating the implementation and alteration of the agreements. These competences are rather diverse as they go beyond mere execution of obligations in the agreements. They include decision-making on rather fundamental issues, rule-making and even treaty amendments, all of which might imply an exercise of political discretion. Hence, these common organs enjoy some public powers that have been delegated to them by way of treaty making. This transfer of powers prompts the question whether the EU is allowed to transfer the sovereign rights it was granted by the EU Member States to new institutions under public international law. Otherwise, the EU acts ultra vires if the organs enjoy powers that go beyond mere execution of the agreement’s provisions. Furthermore, as an EU FTA requires the consent of the European Parliament, the question must be raised how this relates to the capacity of the common organs to exercise political functions. This chapter addresses the above issues by highlighting inherent constitutional constraints to the EU competence to transfer powers to common organs, flowing from democratic legitimacy demands and requirements of institutional balance in the EU, and explores the consequences for the Comprehensive Economic and Trade Agreement (CETA).

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