for the Study of European Law, City Law School, City, University of London*
Professor of Law at the City Law School, City, University of London; Jean
Monnet Chair in Law and Transatlantic Relations 2019-2022; co-director of the
Institute for the Study of European Law (ISEL), City Law School since 2016; in
2023, Visiting Professor at the American University, Washington College of Law
(WCL) and Senior Land Steiermark fellow at the University of Graz; Research
interests: EU law, global governance, EU external relations and the EU as a
global digital actor.
The EU-US Trade and
Technology Council (TTC)
Trade and Technology Council (TTC) has been set up quickly by the European
Union (EU) with the US at the outset of the US Biden administration. It is not
a trade negotiation and does not adhere to any specific Article 218 TFEU
procedure, although it has many signature ‘EU’ characteristics. The TTC has
high-minded goals to ‘solve’ global challenges on trade and technology with its
most significant third country cooperating partner. Yet it is notably not the only recent Council
proposed by the EU- there is also a new EU-India
Trade and Technology Council. These new Councils represent a new modus
operandi for the EU to engage with ‘complex’ partners, comprising executive to
executive engagement, meeting agency counterparts regularly in close groups in
an era of EU trade policy deepening its stakeholder and civil society ambit
overall. The TTC has a vast range of policy-making activities, traversing many
areas of EU law. Their precise selection
and future is difficult to understand in EU regional trade and data policy, seemingly
pivoting, like US trade law, to executive-led soft law.
entity not officially to be found within the TTC is the European Parliament (EP).
The EP is formally not part in any way
of the EU-US Trade and Technology Council (EU-US TTC). The TTC has held three ‘high-level’ political
meetings so far escribed as executive to executive ‘ministerial’ meetings steer
cooperation within the TTC and guide its 10 working groups on technology
standards, secure supply chains, tech regulation, global trade challenges,
climate and green technologies, investment screening and export controls. The
first two meetings focused on launching the TTC and setting its agenda, while
the third – in December 2022 – was described as a ‘shift to deliverables’. The
TTC strikingly has a vast range of global law-making goals and has received
public critique for either ‘under-performing’ or for its overbroad focus. It comes
at the back of significant EU-US collaboration in data privacy.
short blog considers the merits of the placement of the EP. It considers its de
facto and de jure ‘sidelining’ from this era of EU-US relations, in an ostensible
age of parliamentarisation and widening participation.
EP powers in
external relations: increasingly empowered at all stages … to a point
EP is increasingly empowered politically and legally in international relations
including important powers of consent to approve international agreements in a
wide variety of circumstances, pursuant to the EU treaties in Article 218(6)(a)
TFEU, with information and veto rights. The EP is excluded from the critical
stage of the opening of negotiations on external relations agreements. Many of its powers represent a very end-point
of diplomacy, politics and technical issues, in reality, temporally earlier issues
are increasingly important in a world where soft international economic law prevails
and trade agreements are viewed as old-fashioned. As a result, the EP uses many
soft law resolutions to advocate legal positions in the shadow of its veto. The
EP has, however, also been granted important information rights in Article
218(10) TFEU, which have been given constitutional significance by the CJEU
in key caselaw initiated by the EP.
similar to or mimicking the US the EU increasingly uses ‘soft’ international
arrangements rather than formal international agreements in establishing
relations with non-EU states. Yet the
use of the many forms of soft law in EU external relations runs the risk that
parliamentary influence is by-passed.
The EP in EU-US
relations: a striking history of litigation and evolving legal powers
EP record on EU-US relations is quite striking, from civil liberties to trade, using
its many and evolving legal powers. The EP litigated notoriously the EU-U.S.
Passenger Name Records Agreement (PNR) and swiftly rejected the EU-US
Transatlantic Terror and Financing Programme (TFTP) (Swift) giving it ever more
legal prominence in EU-US relations. The EP did not issue recommendations
on the opening of EU-US trade negotiations in 2019 and the EP notably even rejected
a draft resolution recommend the opening of Trump-era EU-US trade talks relating
to concerns as to the Trump administration, Eastern European country visas for
the US, accepting
the so-called mini-Lobster trade agreement with difficulty. The EP had a
highly prominent role in compelling more transparency to the EU-US
Transatlantic Trade and Investment Partnership (TTIP), through illegal leaking
negotiation texts in the public interest.
The EP in TTC:
it can now be said that the EP is not per se helping itself as to TTC. The EP
has once received a
briefing from the Commission through its INTA Trade committee on the TTC. The
EP thus appears to be ‘monitoring’ the TTC through INTA- although this seems
very odd as to why EP technology and industry committees might be any less
involved than trade in a ‘trade and technology’ venture. One meeting of the
INTA committee with two Commissioners held in December 2022 few tech committees
MEPs were invited – and appeared to have few critical questions of the TTC. The
EP has issued one
critical press release via its trade committee publicly, in late 2022 but
little else, critical of its lack of trade results. However, democratic
scrutiny has been repeatedly mentioned by the EP as to the TTC- via the European Parliamentary research
service ‘EPRS’ briefings - rather than via an EP resolution- arguably
downgrading its importance and EP engagement with it.
the TTC - civil society, industry and the EP all lumped in together?
is important to say that the TTC has a range of engagement strategies for
stakeholders. A TTC Stakeholder Assembly was organised by the Trade and
Technology Dialogue (TTD) which adopts the EU international relations lexicon
of dialogues with stakeholders, increasingly found in EU trade negotiations and
resulting agreements. One may say that it is confusing series of alphabetised
meetings called the TTD, meant to support the TTC. The sheer range of issues
and topics considered by the TTD by zoom- using breakout rooms- is particularly
remarkable and easily accused of being ill-focused. The lack of formal
accountability here appears striking also with stakeholder sessions run by
thinktanks for the EU. High level US administration, professional lobbyists
and/ or thinktanks and EU institutions all appear here to have privileged input
and capacity to influence and scrutinise- but less so the EP.
EU in the US:- increasing EP and EEAS physical site offices
sidelining of the EP in the TTC is notable given the EU’s ratcheting up of
institutions and diplomacy in the US recently. In 2010, the EU established a
dedicated structure with the explicit task of channelling and deepening ties
between the EU and US legislatures - a European Parliament Liaison Office
(EPLO) – notably with no US equivalent. The EPLO sits alongside
physically the European External Action Service (EEAS) in Washington DC in the
same building entitled the ‘The EU and US,’ but notably on the floor below it
(metaphorically?). EPLO Washington DC has added a ‘hard’ dimension to
institutionalising the EU-US inter-parliamentary relationship. Aside from the
EEAS office in Washington DC and the EPLO in Washington DC alongside it, the EU
recently opened its new EEAS
office in San Francisco, California, as a self-professed global centre for
digital technology and innovation. Its mission was said to be to promote EU
standards and technologies, digital policies and regulations and governance
models, and to strengthen cooperation with US stakeholders, including by
advancing the work of the EU-US TTC. The office was said to work under the
authority of the EU Delegation in Washington, DC, in close coordination with
Headquarters in Brussels and in partnership with EU Member States consulates in
the San Francisco Bay Area- but again without any mention of or reference to
the EP or EPLO in the US.
real harm of soft law councils?
EP is arguably legally excluded from the new era of soft international economic
law that the EU is readily subscribing to, to a high degree. The rights of the
EP have evolved significantly - even in an age of soft law in international
relations. The TTC is following an EU
law blueprint in effect legitimising its executive-led action but it is also
acting contrary to the thrust of much EU international relations practice which
is about widening and deepening participation.
harm of ‘soft law’ councils remains very real if it becomes mainly executive to
executive sidelining of parliaments.
entities such as the US have declared trade agreements to be old fashioned in
favour of soft law framework agreements, the EU had always appeared less so
inclined as a rules-based multilateralist.
EP in transatlantic relations has been highly effective, engaged and
participating and should not necessarily be formally excluded from this new era
of EU-US relations, privileging TTC contacts.