A 'Legal Eccentricity': The European Parliament, its Non-binding Resolution, and the Legitimacy of the EU's Trade Agreements

• Autore: Nina M. Hart
• Carica: Qualified lawyer in New York and non-practising solicitor in England & Wales
• Pagine: 327-361

†Ms. Hart is a qualified lawyer in New York and non-practising solicitor in England & Wales. The author is

grateful to Oana Stefan and Anu Bradford for comments on earlier drafts. The author wishes to specify that

all views and errors are the author’s alone. Contact: nmh2132@columbia.edu. Orcid iD: 0000-0001-9903-3096.

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A

A “Legal Eccentricity”: The European Parliament,

its Non‐binding Resoluon, and the Legimacy

of the EU’s Trade Agreements

N

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†

ABSTRACT

The European Union (EU) is pursuing an ambitious trade agenda despite increased controversy

over the negotiating processand substance of trade agreements. This controversyraises questions

about the legitimacy of trade agreements, as Cecilia Malmström, former European Commissioner

for Trade, has acknowledged. This article seeks to evaluate the legitimacy of the EU’s agreements,

with a focus on the role of the European Parliament as a legitimating actor. It argues that the

Treaties do not provide for sufficient legitimacy and then considers whether Parliament has been

able to use its informal governance tools, particularly the non-binding resolution, to narrow the

legitimacy deficit.

KEYWORDS

Legitimacy; Trade; European Parliament; Soft Law; Resolution

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A “LEGAL ECCENTRICITY”

TABLE OF CONTENTS

Introduction ............................................ 328

1.TheoriesofLegitimacy ..................................... 330

2. LegitimacyDeficit? TheTreaties’ Allocationof Competences . . . . . . . . . . . . . . . . 332

2.1TheLegalContext................................... 332

2.2AnAssessment .................................... 333

3. Fillingthe Gaps: Soft Law as a Means of Enhancing Legitimacy? . . . . . . . . . . . . . . . 336

3.1InputLegitimacy.................................... 337

3.1.1 Improving Opportunities for Participation . . . . . . . . . . . . . . . . . . . 337

3.1.2 Have Parliament’s Efforts Proved Meaningful? . . . . . . . . . . . . . . . . . 344

3.1.3 Contextualising Parliamentary Influence . . . . . . . . . . . . . . . . . . . . 349

3.2ThroughputLegitimacy................................ 355

3.2.1 Improving Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

3.2.2 Improving Openness and Transparency . . . . . . . . . . . . . . . . . . . . . 356

Conclusion............................................. 359

The world is changing, creating two major new challenges that demand

new responses from trade policy makers. First, we must keep up with economic

developments . . . The second major challenge to trade policy is about legitimacy. 1

INTRODUCTION

Generating sound trade policy presents significant challenges to policymakers, both in

terms of substance and procedural development. This article takes up one of the

challenges identified by former Commissioner Malmström and explores the legitimacy of

a critical piece of the European Union’s [hereinafter EU] trade policy: trade agreements.

The public is concerned about whether trade agreements promote economic growth

while not compromising their values,2rendering it increasingly important to consider

their legitimacy. A key player in any legitimacy analysis is the European Parliament

[hereinafter Parliament], both as an institution elected to serve as the democratic

representative of EU citizens3and as one of the institutions that must consent to any

proposed trade agreement. The impact of the first role on the second may take on a new

1Cecilia Malmström, European Commissioner for Trade, Liberal International’s Isaiah Berlin Lecture

at the Yale Club of New York: Liberalism, Free Trade and Other Values (Sept. 24, 2015),

https://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153813.pdf.

2Id.

3Consolidated Version of the Treaty on European Union art. 10(1)-(2), June 7, 2016, 2016 O.J. (C 202) 13

[hereinafter TEU]; see also Francis Snyder, SoftLaw and Governance: Structureand Process in the European Union

Experience,in T

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(Luo Haocai ed., 2009).

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– or renewed – significance for the other EU institutions during the von der Leyen

Commission’s mandate. More precisely, the 2019 Parliamentary Elections had a turnout

of over fifty percent for the first time in over twenty years.4This makes it “very difficult”

to conclude that Parliament is not a representative of the public and therefore makes it

increasingly important that the other EU institutions consider Parliament’s views.5

This article seeks to assess Parliament’s influence on the legitimacy of trade

agreements to date, taking into consideration the relatively limited role provided for it

in the Treaties as well as how it has sought to expand its role via informal governance

tools, particularly the non-legislative, non-binding resolution. The non-binding

resolution is of particular significance for several reasons. First, it is one of the most

public “soft law” tools available to Parliament, as it is generally debated and voted upon

in open sessions. Soft law is defined here as “[r]ules of conduct which, in principle, have

no legally binding force but which nevertheless may have practical effects.”6Second, the

resolution is voted on in plenary and reflects the majority view of Parliament. Third, it is

often used by Parliament to seek commitments from the other EU institutions prior to as

well as during negotiations despite the fact that the Treaties do not give Parliament a

formal role during these stages. To put it bluntly, the non-binding resolution is

something of a “legal eccentricity.”7

To undertake this evaluation, the article first introduces the concept of

legitimacy and sets out how legitimacy will be measured. Next, it explores whether the

Treaties sufficiently legitimise the EU’s trade agreements. Coming to the conclusion that

they do not, the article subsequently analyses whether and how the European

Parliament’s use of the non-binding resolution has affected this legitimacy deficit. To

identify the relevant resolutions, searches of Eur-lex and the European Parliament’s

website were performed using the phrases “trade & resolution,” “trade & [country],” and

“investment & resolution.” All resolutions meeting the following criteria were included

in the study: (1) they were about a particular agreement or addressed trade in a broader

context and (2) they addressed trade policy or negotiations begun or continued after the

Treaty of Lisbon went into effect, as this is when Parliament gained the power of consent

with regard to trade agreements. The contents of these resolutions were then compared

to the texts of the agreements and to other public documents released by the European

4Voter Turnout Rises for First Time Ever in EU Elections, Breaking 50%, Euronews (May 28, 2019),

https://www.euronews.com/2019/05/27/voter-turnout-rises-for-first-time-ever-in-eu-elections-

breaking-50 (last visited June 28, 2020).

5Interview 5 (C). See infra note 8 for an explanation of the author-conducted interviews.

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197, 198 (Stephen Martin ed., 1994).

7Interview 3 (EP).

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