Making Non-binding Agreements in the EU: a Role for the European Parliament?
Last week, I presented a paper at an event organized at City, University of London. The theme was the role of soft law instruments in the EU’s trade policy. In my paper, I explored the role of soft law in the EU’s trade relationship with one particular partner: Canada. Canada is an interesting case because the EU-Canada trade relationship is governed by an ambitious ‘new generation’ trade agreement: the Comprehensive Economic and Trade Agreement (CETA).
CETA is well known for the successive controversies it has generated as it has made—and continues to make—its way through the various national parliaments. However, my paper did not focus on CETA’s troubled ratification, primarily caused by its provisions on investor-state dispute resolution. Instead, I examined what has been happening since the provisional application of CETA in September 2017, particularly how the EU has been engaging with Canada in the trade sphere.
It was interesting to observe that, despite CETA and its provisions for further implementation through binding mini-agreements, the EU has been making several so-called ‘non-binding agreements’ with Canada on diverse issues such as raw materials, digital policy and environmental and climate change policy. These non-binding agreements ‘build on’ the collaboration established by CETA through several ‘specialized committees’ on themes such as raw materials and e-commerce. However, they exist independently from CETA.
Non-binding Agreements
Non-binding agreements are agreements that the parties intend not to be legally binding. The intention of the parties is key in determining the legal bindingness of an agreement. This intention is often explicitly stated, as in the EU-Canada Green Alliance, which holds that the agreement “does not, nor is it intended to create any rights or obligations under domestic or international law and has no financial implications for either Partner.” When an agreement lacks such a clause, the text and context must be examined. Terms such as “intend to” rather than “shall” indicate an intention not to conclude a legally binding agreement.
A lack of binding character does not mean non-binding agreements are irrelevant. On the contrary, for numerous reasons that cannot be discussed in this blog post, a growing number of important agreements are concluded as non-binding agreements. The memorandums of understanding on migration matters the EU— or rather, ‘Team Europe’—has been concluding with its southern neighborhood are a case in point.
How Non-binding Agreements are Made
Given their growing political significance, it matters how the EU concludes non-binding agreements. In recent years, an interinstitutional modus operandi has developed whereby the Commission negotiates so-called ‘non-binding instruments’ (NBI) after receiving authorization from the Council. If and when the negotiations conclude successfully, the Commission seeks permission from the Council to finalize the agreement.
This practice can be traced back to the Court of Justice’s judgment in the Swiss MoU case, where it held that the conclusion of non-binding agreements requires Council approval when it constitutes an act of policy-making. Policy-making is a Council prerogative as per Article 16 TEU. Following this judgment, the Council and Commission created their own non-binding agreement, a set of ‘arrangements’, to implement the Court’s judgment.
Where is Parliament?
In my talk at City, I raised the question of why only the Council, and not the European Parliament, plays a role in this ‘NBI’ procedure. Could it not be argued that Parliament should also give its consent to a non-binding instrument wherever the Council is entitled to do so? This argument, which I have made elsewhere before, could be based on Parliament’s Article 14 TEU powers to ‘exercise political control’ and, at a higher level of generality, as required by Article 10 TEU, which states that the ‘functioning of the Union shall be founded on representative democracy.’
Would such an arrangement undermine the flexibility that makes non-binding agreements attractive? Perhaps. But so does the requirement that the Council grant its approval.
The issue I have with the current arrangement is that the two institutions responsible for law-making in the EU, i.e., the Council and Parliament, are treated unequally. This runs counter to one of the rationales of the Lisbon Treaty, which was to introduce a parallelism between internal and external decision-making procedures—hence the involvement of both Parliament and Council in the Article 218 TFEU procedure to negotiate and conclude legally binding international agreements in instances where the ordinary legislative procedure applies internally.
It is one of two things: either an agreement is not sufficiently important to require approval by the law-making institutions (the ‘legislature’), in which case the Commission (the ‘executive’) should be able to conclude it independently; or the agreement is important enough to require such approval, in which case both law-making institutions, i.e., Parliament and Council, should have their say.
As it stands, the arrangements to conclude non-binding instruments are a convenient way to avoid scrutiny by the European Parliament while preserving Member State control.
