Judicial Control of the European Union and the Member States’ Trade and Investment Relations

Trade and investment relations between the EU and its Member States with the rest of the world have become increasingly contested. Parts of academia and the public no longer see more trade as a value as such. This contestation has also affected the ratification of several EU trade agreements. Increasingly, privileged applicants trigger the powerful opinion procedure under Article 218(11) TFEU to challenge agreements before they have been concluded. This chapter analyses, through a separation of powers lens, how the European Court of Justice (ECJ) tries to strike a balance between the political autonomy of the EU and of the Member States. In the context of trade and investment agreements, the Council, Commission and national governments act alongside each other as a top-level split-executive. Both national parliaments and the European Parliament are weakened when matters are taken into the realm of international relations. The judiciary is left as the only counterbalance. Separation of powers requires that the law and case law allocates responsibilities reasonably clearly and, in light of Article 10 TEU, that decision-making in the EU can ultimately be traced back to national and European citizens (two-pronged structure of legitimation). The chapter concludes that the Court tries to walk a tightrope between EU and Member States’ political autonomy. This seems convincing from a pragmatic and normative perspective but contributes to the complexity of the legal constructions. Ultimately, these complex constructions remove the EU further from the ideal of separation of powers.