Democracy, control, legitimacy Separation of powers and EU trade and investment policy

This thesis examines the institutional framework and practices of negotiation of trade and investment agreements by the European Union (EU) through the lens of separation of powers. Trade policy and trade agreements have the potential to affect the rights and obligations of individuals and generate significant distributive consequences. In addition, the scope of EU trade policy has gradually broadened, and it increasingly deals with non-economic topics, such as industrial and climate policies. In turn, the normative framework of separation of powers developed in this thesis evaluates how EU governance in the field of trade fares against two fundamental objectives: democratic will formation and control. The normative examination carried out in this thesis combines the legal-doctrinal method with case studies dedicated to specific trade or investment agreements that draw on content analysis of various policy documents and expert interviews.
This thesis demonstrates that the law and practices of EU trade policy evoke not an ideal of separation, but rather that of confusion of powers. The legal framework and practices in question are consensus-oriented (not agonistic) because of its complexity, the abundance of inputs, and the great number of veto players. At the same time, this framework is arguably well-suited to prevent abuse of power, often precisely for the reasons that make it insufficiently democratic. The thesis also underscores the underexplored role of the Trade Policy Committee of the Council and the European Commission’s framing and agenda-setting powers which translate into a long-term intellectual leadership over trade policy strategy.