Separation of Powers in the Making of the EU’s Twenty-first-century Trade Agreements

The making of trade agreements is traditionally understood as a prerogative of the Executive. This chapter argues that the institutional framework in the EU Treaties is no different, despite a strengthening of the powers of the European Parliament under the Lisbon Treaty. In the EU, the process of treaty-making in the area of trade is still dominated by the Commission and the Council. This chapter argues that this executive dominance is caused by the autonomy of the Commission during negotiations, the lack of a mandate from the European Parliament, the limited legal requirements for public debate and deliberation, and the potential for binding the legislature through executive action. As a result, collective will-formation in the making of trade agreements in the EU is hampered. As the conclusion of trade agreements is under such significant public scrutiny the old model of relying on technocratic expertise no longer suffices. This contribution offers several suggestions for improvement: ‘parliamentarization’, deconstitutionalising trade agreements, introducing transparency obligations and limiting the autonomy of the Commission.