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Too Complex or Too Ambitious?

Leopoldo Biffi

2. Literature Review: The multidimensional complexity of new-generation FTAs

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1Scholarly literature has been keen on highlighting the layer of complexity the Lisbon Treaty (2009) and policy initiatives such as “Global Europe” (2006) have cast upon the EU Common Commercial Policy (CCP), which has acquired a “deep and comprehensive” nature (European Commission 2006; Laursen and Roederer-Rynning 2017). Lisbon sanctioned an expansion of Commission trade competences beyond traditional notions of tariffs and market access, notably towards investment, trade in services, public procurement, intellectual-property rights (IPRs), and environmental protection (Dimopoulos 2008; Niemann 2013; Woolcock 2008;Young 2016; Young and Peterson 2014). These domains have drawn attention to the “regulatory turn” in EU trade (Laursen and Roederer-Rynning 2017: 763), conceived as the “flipside” of ambitious new-generation FTAs seeking to integrate the EU and its trading counterparts to an unprecedented extent (Alemanno 2014; Pelkmans 2015, 2017; Young and Peterson 2014). With the aim of structuring trade flows between the EU and global third parties, FTAs have come to stimulate convergence in the very systems of standards that sustain global trade in goods, services, as well as value chains (GVCs) (Manger 2009; Baldwin 2012; Pelkmans 2017; Dür et al. 2019).

2Yet, deepened trade relations are not solely an element of ambition (Buonanno and Nugent 2013; Woolcock 2010, 2015), but can pose hurdles to a pivotal standard-setter like the EU. The CCP has hardly been so recurrently at the centre of vocal debates and political contestation domestically (Meissner and Rosen 2019; Meunier and Czesana 2019). Since the EU qualifies as a regulatory champion in fields ranging from competition to food safety, opening up to global trade partners has been deemed a threat by many constituents (Laursen and Roederer-Rynning 2017; Majone 1994; Pelkmans 2017). Negotiations of landmark FTAs like the TTIP and the CETA are revealing of how an ambitious trade agenda requires striking a careful balance between liberalisation and domestic rulemaking – for instance, on highly contentious issues such as investment-protection (Meunier 2017; Meunier and Morin 2017: 899-900). Alongside regulatory matters, normative concerns pertaining, inter alia, to sustainability have also been deemed a key source of complexity and contestation (Duina 2019). The momentum gathered by environmental issues in the aftermath of the Paris Agreement (2016), for instance, has pushed EU public opinion to demand greater trade conditionality on green policies. On the other hand, it has cast fears that competing globally vis-à-vis trade actors showing looser environmental regulations could lead EU policymakers to privilege economic gains over sustainability goals (Duina 2011; Young 2016).

3Far from constituting merely normative issues, debates like those exemplified above have generated significant hurdles for the European Commission, combining with the intricate trade-governance mechanisms in the EU. Specifically, the salience and contentiousness of new trade-policy domains has contributed to making the conclusion of EU FTAs particularly challenging, above all when it comes to ratification (Laursen and Roederer-Rynning 2017; Meissner and Rosen 2019; Wüthrich 2020). In that regard, the literature has been prolific in pointing at how post-Lisbon European Parliament (EP) consent on FTAs has added a layer of complexity to the approval of negotiated texts (Crombez and Van Gestel 2012; Furness 2013; Monar 2012; Scicluna 2012). In addition, mixed agreements (like the CETA) covering domains of shared competence between the EU and Member States need to go through lengthy processes of national-level ratification, which timewise extend contestations faced by a text before entering de jure into force (Craig and De Búrca 2015: 83). Overall, beyond an expansion across new policy domains, ratification hurdles show how EU trade also faces significant challenges as a function of its institutional mechanisms, still caught between growing delegation to the community level and intergovernmental pushbacks (Scicluna 2012).

4Against this background, reviewed literature is helpful in defining and highlighting the two fundamental drives behind the intricacy of contemporary EU trade. Global Europe’s qualitative shift towards a reinvigorated trade agenda has come to overlap with Europe’s intricate decision-making system. However, the leitmotiv in the literature is very much one looking at these two sources of hurdles as parallel strands (Crombez and Van Gestel 2012; Duina 2019; Woolcock 2008). Obstacles related to ambitiousness are seen as an unwanted offshoot of Global Europe, while institutional constraints are seen as a function of Lisbon reforms, the latter having paradoxically increased trade veto-playing. These two types of obstacle are conceived as having coincidentally overlapped, looming behind Commission trade agency.

5This research takes a different approach, pointing at the mutually constitutive role of contentious trade policy domains and intricate policy mechanisms in preventing a smooth and coherent conclusion of FTAs. To that end, we draw attention to the public-policy mechanisms through which increasingly contentious trade issue-areas such as TSD have become part of EU public debates, combining with the Union’s intricate ratification and enforcement procedures. In this respect, a number of scholarly analyses have placed emphasis on how the expansion of EU trade towards policy domains of deeper integration and of regulatory relevance is particularly likely to result in hurdles during both the negotiation and implementation of FTAs (Baldwin 2012; Laursen and Roederer-Rynning 2017; Pelkmans 2017; Young 2016). This pattern proves relevant to this research in that it points at where trade hurdles lie. Yet, we suggest that a given policy area cannot be contentious a priori, but rather becomes so as a number of EU policymaking actors come to express their views on it, issuing formal decisions, votes, or vetoes or engaging in protests. This is especially the case within a democratic, multi-level system like the EU, which presents an unparalleled number of checks and balances ranging from parliamentary scrutiny to unanimous decision-making and stakeholder auditing. Mechanisms within this complex public-policy system constitute the fundamental link between two otherwise incommensurable dimensions: the substantive contentiousness of a policy issue and the system of policy actors that come to constrain EU trade policy as a result.

6By applying a similar perspective to EU trade negotiations, we seek to build upon existing two-level game literature in the tradition of Putnam (1988), and his emphasis on the necessity to reach domestic win-sets in order to successfully conclude international agreements. In that regard, two-level approaches to (trade) negotiations have proven ground-breaking in establishing a link between international negotiations and domestic politics. Yet, our understanding of the challenges to EU trade policy would be greatly improved by refining our analysis of how EU domestic preferences are formulated and come to interact with Commission trade policymaking both during and after bargaining. That requires going beyond geometric win-set overlaps, paying greater attention to the public-policy dynamics making the ratification of FTAs arguably the most pressing challenge faced by the Commission as a negotiator.

7In this light, the research questions tackled by this analysis are: What domestic political obstacles confront the European Commission in view of the ratification and implementation of negotiated FTAs? How does the Commission address these obstacles and what policy dynamics can aid such an endeavour? Lacking prescriptive aims, our analysis wants to draw attention to the key public-management challenges the Commission faces in advancing its trade agenda. In so doing, it focuses on the above policy constraints from the standpoint of a unitary actor in charge of executing the CCP. Adopting a managerial lens on trade policymaking makes particular sense considering that EU trade is administered by a central bureaucracy like the Commission. Thus, issues arising from trade debates and policy processes present themselves as public-management obstacles confronting the strategic priorities of a single bureaucratic entity in its attempt to efficiently execute its mandate. In so doing, we depart from specific theoretical strands such as principal-agent theory, which focuses on turf wars between the Commission and other EU players over respective competences (Pollack 1997). Rather, we limit ourselves to considering the priorities, strategic aims, and challenges characteristic of the Commission’s current mandate.

8In making sense of above trade-policy obstacles, we will focus in particular on the role played by EU civil society. We conceive the latter in terms of NGOs working on issues ranging from social justice to environmental protection, trade unions, and consumer organisations all having gained increased prominence in EU trade politics (De Ville and Siles-Brügge 2016; Young 2016). While EU literature has covered extensively issues pertaining to business interest groups, and how the latter “capture” relevant regulations, it has arguably paid scant attention to the role of civil society in the CCP (Dür and Zimmermann 2007; Stigler 1971). In some instances, this has led to the conclusion that advocacy NGOs still play a comparatively limited role in the shaping of EU trade policy (Dür and De Bièvre 2007). We seek to reconsider similar arguments. Specifically, we argue that drawing attention to the role played by civil society in translating political opposition into formal institutional constraints to the CCP can stimulate new research avenues. These could make better sense of how EU trade politics comes to shape EU trade policymaking.


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