Professor Elaine Fahey, Institute 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)
A Transatlantic 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.
One 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.
This 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
The 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.
However, 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
The 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: self-sidelining?
However, 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.
Stakeholders and the TTC - civil society, industry and the EP all lumped in together?
It 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
The 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.
Conclusions: the real harm of soft law councils?
The 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.
The harm of ‘soft law’ councils remains very real if it becomes mainly executive to executive sidelining of parliaments.
Where 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.
The 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.