1In this chapter, we discuss findings from the empirical exploration of H1 and H2. We argue that civil society, conceived in terms of advocacy groups and social partners working on EU trade, plays a pivotal (yet undertheorised) role in challenging the enforcement of negotiated FTAs. When these actors enjoy the backing of official-level veto players like the EP or Member States, the Commission has often no alternative but to revise the terms of negotiated agreements, in a process we have referred to as “solution-chasing” (Cairney 2020: 199). We discuss H1 and H2 collectively, also analysing related case studies in section 7.3. The two hypotheses, in fact, although looking at different causal mechanisms, pertain to dynamics that in the reality of EU trade policymaking tend to intertwine.

7.1 Between salience and PROs: Civil-society advocacy as the elephant in the room? (H1)

2As regards H1, coding results from our empirical dataset yield support for the claim that if salience is manifested in relation to an FTA chapter when negotiations are ongoing, political ratification obstacles (PROs) will be posed by unfavourable veto players after signing. Each of the six examined cases comports with this theoretical expectation. Specifically, four cases suggest that salient FTA chapters are associated with PROs.1 Conversely, accounting for covariation, two cases show that low or no salience tends to result in low or no PROs.2

3It may appear as common sense that win-set misfits on salient issues trigger strong domestic opposition (Janusch 2016; Putnam 1988). Yet, linking salience to the specific notion of political ratification obstacles (PROs) is telling of what lies behind a more general notion of “contentiousness” in EU trade (Laursen and Roederer-Rynning 2017). Namely, it can explain why and how newly salient policy domains such as the environment, sustainable development (TSD), and regulatory sovereignty are proving so challenging to predominantly economic FTAs, while also marking a qualitative shift in EU trade policy (De Ville and Siles-Brügge 2016). In the examined case studies, the empirical testing of H1 suggests that salience is particularly associated with PROs when a trade issue-area proves salient to civil-society advocates. The mechanism behind this association is two-fold.

4First, “advocacy coalitions” tend to mobilise more strongly on issues having high salience to them, for these directly relate to the “deep core” of their shared beliefs (Sabatier 1988: 144). Whenever an FTA creates concerns amid civil society, it goes beyond the specific portfolios of single organisations, coming to clash with a broader and deeper system of beliefs in which multiple stakeholders recognise themselves. This is key to advocacy coalition-building, allowing NGOs with different mandates to join forces in challenging given trade policies. For instance, the fear of a regulatory “chill” on pesticides under the CETA witnessed the mobilisations of more topical NGOs like Pesticide Action Network (PAN), but also of other environmental NGOs not directly working on chemical substances (Health and Environment Alliance 2017). This augmented the resonance of an otherwise restricted group of highly specialised NGOs.

5Second, and closely related to our last point, salient issues having to do with advocacy core beliefs tend to pose more generalised PROs to negotiated FTAs. Civil-society organisations leverage highly politicised arguments, grounded on ethical and social concerns. These can easily lead to widespread public contestation, as opposed to more technical regulatory issues characteristic of business lobbies engaging in “quiet politics” (Burstein 2006; Culpepper 2010). For instance, policy domains like investment protection or trade and labour predominantly witnessed salience and PROs, and were championed by civil-society advocacy. Conversely, regulatory issues and non-tariff barriers (NTBs) yielded predominantly low salience and low PROs, which combined with the prevalent engagement of special business interest groups.

7.2 From the streets to committee rooms: The institutional endorsement of advocacy concerns (H2)

6With respect to H2, we explored the impact of two distinct independent variables a priori expected to push the Commission to pursue solution-chasing (dependent variable). Consistently across our seven cases,3 we found an association between both i) the mobilisation of official-level veto players and ii) the mobilisation of private/advocacy veto players and the phenomenon of solution-chasing. Most crucially, the dependent variable solution-chasing is particularly associated with the combined mobilisation of both official-level and private/advocacy veto players on a given issue. Qualifying as control cases, both the policy domain of trade and labour and sanitary and phytosanitary (SPS) measures yielded no occurrence of solution-chasing when advocates mobilised without the formal support of an official veto player – crucially, the EP. In light of the above empirical results, H2 is able to refine conclusions drawn from H1, by focusing on how the mobilisation and lobbying carried out by advocacy groups can effectively elicit policy-change. To that end, it is necessary to make sense of how advocates are embedded in a broader institutional context allowing them to affect the position of official actors ultimately enjoying veto powers.

7Through the lens of the advocacy coalition framework (ACF), the empirical testing of H2 suggests that in order for civil society to successfully compel the Commission to resort to solution-chasing, advocates must enter into a “winning coalition” with the European Parliament (EP) or Member States (Rozbicka 2013: 841). The EP has rightly been theorised as Europe’s normative champion of value-based policymaking (Manners 2002). Yet, the case studies examined below still display variability in the extent to which MEPs have formally upheld advocacy concerns. This depends, we posit, on the fact that coalition-building between advocates and the EP across domains such as TSD, trade and environment, and investment, is still very much a function of “secondary aspects” of their respective systems of beliefs (Sabatier 1998: 103-104). These relate to “policy preferences regarding desirable regulations or budgetary allocations” rather than to “deep core” beliefs more radically shaping policy actors’ views on the world and politics (104). Thus, for an advocacy coalition to be formed between civil society and the EP, the policy views of both need to productively converge around specific provisions and focal points in a given FTA on which adjustments and safeguards are demanded from the Commission. Overall, the still unsystematic and ad hoc nature of these policy liaisons between advocacy and the European Parliament should be seen as a transformative, long-term process (Warleigh 2000). As EU new-generation trade progresses, more than a decade after Lisbon, we may well expect more structured and stable coalitions between advocacy concerns and MEPs’ positions, along the lines of what has happened with human-rights conditionality – an unquestioned pillar of EU external action since the 1990s (Keukeleire and Delreux 2014: 75).

7.3 Case studies

Investment Protection

8The TTIP and the CETA were the first FTAs covering investment protection, mirroring Commission mandate-expansions introduced by the Lisbon Treaty. During both negotiations, widespread public debate sparked around the investor-state dispute settlement (ISDS) mechanism originally included by DG Trade into both agreements (De Ville and Siles-Brügge 2016). Modelled upon North American arbitration standards, the ISDS allows private firms and investors to directly engage in investment disputes with national governments, through mechanisms alternative to domestic civil law (De Brabandere 2016). In this light, ISDS proved salient to a wide array of civil-society groups and social partners, ranging from environmental organisations to unions, which denounced the regulatory “chill” this system would lead to, and called for its replacement. EU debates on the CETA and ISDS speak powerfully to the two hypotheses discussed here.

9As regards H1, they show that the salience of the issue translated into PROs as negotiations were coming to an end. Contestation of ISDS provisions reached a level of prominence that made the odds of the CETA succeeding provisional enforcement very low, had this mechanism not been replaced. Textual materials coded under H1 show how civil-society actors were particularly vocal in challenging the admissibility of ISDS under EU law (ClientEarth 2016a). On the contrary, business groups like the European Banking Federation (EBF) engaged in a much more low-key type of lobbying. Moderately open to a reform of ISDS, they made their expertise available for policy advice (European Banking Federation 2015). This suggests that the key divide between business and advocacy groups lies in how the former mobilise their technical expertise in order to quietly shape policy outcomes, whereas the latter engage in public contestation (Culpepper 2010: 180-185).

10While, in general, quiet politics based on the mobilisation of expertise is a key source of power, as opposed to open contestation (Culpepper 2010), this is les the case when an issue finds itself already in the spotlight. Therefore, with respect to H2, not resorting to solution-chasing, by not excluding ISDS from EU trade policy, would have made the Commission incur the blame for keeping the issue away from public scrutiny. With respect to the CETA, a Commission official recalled: “[t]here [was] a huge public controversy on this issue […]. It was felt that we needed to go back to our Canadian friends, and convince them that this is the EU’s new approach. The text was […] finalised, and was already going through legal scrubbing.”4 Between late 2015 and early 2016, the ISDS was replaced with an investment-court system (ICS) gathering national judges, and going in the direction of a multilateral investment court (MIC) (De Ville and Siles-Brügge 2016: 1495). The shift from ISDS to ICS, a landmark instance of solution-chasing, points at how the Commission is particularly compelled to revise an FTA when civil-society campaigning finds the support of an official-level veto player enjoying ratification powers. This was the case with the EP which, already in the context of the TTIP, proved particularly sensitive to the positions of civil society on ISDS. The European Parliament’s concerns resulted in a Resolution calling on the Commission “to replace the ISDS system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny […]” (European Parliament 2015: 15). The role played by the EP on ISDS was particularly key considering how fourteen Member States, on the contrary, openly questioned a reform of that system, regarding civil-society opposition as a series of “misconceptions” (Financial Times 2014).

Trade and Sustainable Development (TSD)

11Over the last decade, Commission initiatives like the “Trade for All” Communication have determined a more systematic inclusion of TSD policies into FTAs (European Commission 2015). With respect to H1, we mapped EU domestic debates through indicators referring to the TSD domain both in terms of its environmental and socioeconomic pillar.5 EU debates on TSD have arisen in the context of TTIP and CETA negotiations, initially pointing at the social implications of liberalising trade vis-à-vis countries with deregulated labour markets (ETUC and CLC 2013). Yet, they reached a peak on environmental issues, witnessing unprecedented instances of veto-playing following the signing of the EU-Mercosur FTA, in June 2019. Amongst the greatest concerns of civil-society NGOs is “the failure of the Commission to complete the sustainability impact assessment before they concluded negotiations.”6 In their view, this is going to grant preferential trade without anticipating the TSD regulatory erosion potentially resulting from liberalisation, thus sacrificing sustainability in the name of competitiveness. Against this broader scepticism, the exogenous shock of the Brazilian mishandling of summer 2019 fires in the Amazon activated EU Member States’ veto-playing. Most notably, France challenged Brazil’s environmental credibility, with President Macron making it clear that “[Paris] will oppose the Mercosur deal as it is” (Momtaz and Vela 2019). Overall, the evolution of EU TSD debates from the TTIP to Mercosur mirrors well the theoretical mechanism in H1. Specifically, it points at how domestic public debates can contribute to making a number of policy domains salient to constituents, bringing the latter to develop multiple and diverse stakes in an issue. PROs to the EU-Mercosur FTA constitute the tipping point of a public debate, informed, inter alia, by Paris-Agreement targets, in which civil society, the EP, and Member States emphasised how “TSD chapters should be stepped-up and improved” (European Commission Services 2018: 2). As the Mercosur deal is still undergoing legal scrubbing, EU veto players have therefore built an unprecedentedly wide coalition, which crucially includes a number of national governments opposing ratification.

12With respect to H2, both the CETA and the EU-Mercosur FTA offer helpful insights on the domestic drives behind Commission solution-chasing, pointing at the key role of coalition-building between civil society and official-level veto players. As CETA negotiations came to an end, advocates drew attention to the weak enforceability of the TSD chapter. Wallonia, in turn, threatened to veto the text. Although key Wallonian concerns related to investment-protection, the resulting Joint Interpretative Instrument (JII) also established an early review of the CETA’s TSD provisions, deemed obsolete to implement Paris targets (Council of the European Union 2016c; Van der Loo 2016). On the one hand, Wallonia’s support of civil-society concerns formally binds the Commission (and Canada) to resort to solution-chasing. As the CETA qualifies as a mixed agreement, national ratification still looms at the time of writing, making the approval of the text conditional, inter alia, upon a substantial revision of TSD commitments. On the other hand, the TSD review has the potential to grant civil-society groups in the CETA DAG, in charge of monitoring and advising the process, an unprecedented weight in the shaping of EU trade policy. As regards the EU-Mercosur agreement, it is too early to draw informed conclusions as to the phenomenon of solution-chasing. Yet, compared to CETA ratification, the conclusion of the EU-Mercosur FTA has been characterised by Member States as being more receptive to civil-society concerns. A recent instance of this tendency can be found in the Franco-Dutch non-paper calling for more effective enforcement mechanisms based on conditionality when it comes to TSD commitments (Dreyer 2020). The document suggests how solution-chasing on the part of the Commission will likely be required to make provisional enforcement of the FTA politically feasible.

Trade and Labour

13In the aftermath of Global Europe, the politics of EU trade has widely focused on matters of trade and labour rights, witnessing opposition to the negotiation and conclusion of FTAs with countries lacking labour standards equal to European ones. With respect to H1, our analysis of domestic debates suggests that the issue has been predominantly salient in the EU, especially to social partners and advocacy groups, who have come to pose PROs in the aftermath of the signing of relevant FTAs. Civil-society campaigns on trade and labour gained particular prominence in the context of TTIP negotiations, pointing at the non-ratification of a number of ILO conventions by the United States (EAPN 2015: 5). Concerns over labour and the TTIP were embedded in a broader debate pointing at the erosion of EU labour standards as a result of increased market openness. Comporting with H1, as TTIP negotiations derailed and the CETA was approaching signing, the attention of advocacy groups shifted to the EU-Canadian agreement, likewise pointing at Canada’s non-ratification of certain ILO conventions, and calling for the rejection of the text by EU Member States (EAPN 2016).

14 Debates over the TTIP also overlapped with the implementation of the EU-Korea FTA (KOREU). Although the KOREU came into force in 2011, EU civil-society criticism of Korean labour legislation stretched way beyond ratification. With respect to H2, this case is telling of how solution-chasing can also take place once the survival of an FTA is no longer conditional upon ratification. In December 2016, the KOREU DAG sent a letter to Trade Commissioner Malmström, pointing at South Korea’s violation of freedom of association and collective-bargaining rights, and at the country’s outstanding ratification of a number of ILO conventions (Domestic Advisory Group under the EU-Korea FTA 2016). Advocacy claims had not compelled Malmström’s predecessor De Gucht to trigger bilateral consultations with Seoul, leaving the issue substantially unaddressed. Tellingly, the DAG’s letter was met with the mobilisation of the EP INTA Committee, which in May 2017 issued a Resolution calling for the improvement of labour rights standards by South Korea (European Parliament 2017a). In the document, MEPs made explicit reference to the role of advocates in raising awareness of the issue, openly praising the monitoring functions of the DAG (4). Unlike her predecessor De Gucht, Commissioner Malmström proved responsive to EP demands, and requested formal consultations with Seoul, which were held in December 2018. Yet, the Commission was not satisfied with Korean responses and formally requested a bilateral Panel of Experts to monitor outstanding labour issues in Korea (European Commission 2019d). Overall, this case is particularly telling of the leverage enjoyed by the EP in trade policy, as the INTA was able to compel the Commission to initiate a dispute with Korea, despite the KOREU having been already ratified.

Regulation and NTBs

15With respect to H1, our mapping of EU domestic debates on regulatory matters and non-tariff barriers to trade (NTBs) has predominantly yielded no salience and a prevalent absence of PROs. As opposed to policy domains such as investment protection or TSD, discussions on this issue witnessed a comparatively higher involvement of business actors. This comports well with theoretical expectations in H1, pointing at how low-salience issues characterised by “quiet politics” are usually a prerogative of business actors engaging in technical discussions (Culpepper 2010). This was the case, for instance, with the European Chemical Industry Council (Cefic) welcoming expert-based regulatory cooperation on chemical substances in the context of the KOREU, the CETA, and the EU-Japan EPA (Cefic 2019). EU Regulatory Cooperation Forums are conceived as flexible bilateral mechanisms aimed at favouring, where possible, the homogenisation of horizontal regulations impacting bilateral trade relations, on the basis of a “reasoned request from the other side” (Alemanno 2015: 630).

16 Although the “quiet” nature of regulatory policies qualifies the field as comparatively lower in salience and PROs, business actors face analogous institutional constraints in their lobbying to those of civil society. The key difference between civil society and corporate actors lies in how the former takes advantage of issue politicisation, while the latter benefit from their economic structural power to push the Commission towards FTA modifications (Culpepper and Reinke 2014). Yet, with respect to H2, we still observed that EU businesses, albeit interacting with an economic-minded bureaucracy like DG Trade, still required their demands being endorsed by official-level veto players in order for FTA safeguards to be implemented by the Commission. A clear instance of this lies in ratification debates around the KOREU, with respect to NTB matters. Following the signing of the FTA by the EU and South Korea, the EU car lobby ACEA expressed concerns over Korean duty drawbacks on cheap car components destinated for export (for instance from China), which could have resulted in dumping vis-à-vis EU car manufacturers (Elsig and Dupont 2012). In spite of the automobile sector’s pivotal position in the EU economy, “substantial criticism from the car industry […] did not significantly affect the Commission’s chosen course of negotiation” – which saw Korean duty drawbacks as non-negotiable (498). Crucially, a final breakthrough came as a result of the EP which, proving responsive to car-sector concerns, demanded a number of safeguards, by leveraging its ratification powers. Specifically, MEPs granted car firms the power to request investigations over imports of Korean cars, also providing for the monitoring of inflows of sensitive products from Korea (European Parliament 2011). EP modifications resulted in a more structured Safeguard Regulation (511/2011) approved in May 2011, ahead of the FTA’s provisional application, and establishing mechanisms to respond to non-compliance (European Commission 2016). Overall, the case of KOREU suggests that in order for EU businesses to push the Commission towards solution-chasing, the mobilisation of an official-level veto player is required.

Sanitary and Phytosanitary (SPS) Measures

17Sanitary and phytosanitary (SPS) measures have been the object of particularly active debates during the negotiation and provisional enforcement of the CETA. Ahead of the agreement’s signing, a particularly active veto player was the Brussels-based environmental NGO Pesticide Action Network (PAN), whose campaigning had already begun in 2015, in the context of TTIP negotiations. PAN’s advocacy proved highly politicised in jargon, leveraging allegations that TTIP and CETA negotiating guidelines on SPS had been drafted by deliberately excluding the policy proposals of DG Environment, hence privileging market access over environmental concerns (PAN Europe 2015). Specific issues with the CETA related to the potential erosion of EU maximum residue level (MRL) standards on agricultural products, as no equivalent legislation applies in Canada. Thus, NGOs feared a potential EU regulatory chill resulting from the liberalisation of agricultural trade inflows from the Canadian market.

18Comporting with H1, the salience SPS issues acquired for NGOs like PAN translated into PROs in the aftermath of the CETA’s signing, when advocates leveraged the issue of pesticides to elicit an EU veto on the agreement. In response to the Council’s approval of the CETA, a campaign headed by thirty-five health and environmental NGOs shifted its focus to the European Parliament, calling on MEPs to reject the Council decision (Council of the European Union 2016b; Health and Environment Alliance 2017). Yet, the EP did not prove particularly responsive to the requests of civil society. Despite having previously warned about the importance not to compromise European SPS standards as a result of transatlantic trade, Parliament went ahead with CETA ratification (European Parliament 2015: 12).

19With respect to H2, the Commission did not resort to solution-chasing in regard to the SPS chapter. Despite their highly politicised campaigning, advocates came to lack the crucial institutional sponsoring of the EP. In addition to ratification per se, ongoing implementation and monitoring of the CETA SPS chapter is also telling of the substantial absence of solution-chasing on the part of the Commission. SPS matters are now the responsibility of the Joint Management Committee on SPS Measures, which gathers EU and Canadian officials in charge of following up on respective MRL standards, monitoring impacts on bilateral trade. Conversely, civil society lacks a central role in monitoring the implementation of the SPS chapter, as SPS issues do not fall within the CETA DAG’s mandate. The resulting gap between Commission policies and civil-society requests is mirrored by the “possible non-renewal of the EU maximum residue level (MRL) for picoxystrobin,” an issue under discussion by the CETA SPS Committee at its first meeting (European Commission 2018: 2).

Geographical Indications (GIs)

20Based on our dataset, EU debates over trade and geographical indications (GIs) emerged as a clear-cut control case. Examined statements relate to the negotiation and ratification of CETA. The positions of both EU institutional actors and private lobbies yielded no occurrence of salience, and consequently none of PROs. In this respect, the general importance of GIs protection was highlighted by the European Parliament, yet in a generic sense and with reference to the TTIP rather than the CETA (European Parliament 2015: 16). Most strikingly, open praise and support for CETA GIs provision was expressed both during and in the aftermath of bargaining by the Association of European Regions for Products of Origin (AREPO) and by the European Federation of Origin Wines (EFOW), as well as other national business federations (AREPO 2013; EFOW 2017). Beyond the positive and supportive tone of the debate, most telling is that the number of participants in GIs discussions was very limited. This mirrors how low-salience policy domains are largely a prerogative of technical rather than political stakeholders (Burstein 2006). In our dataset, lobbies taking part in GIs debates mainly consisted of specialised business groups like AREPO and EFOW. Conversely, civil society was a minority. Overall, the very small proportions of the debate are telling of how GIs as a policy domain would hardly be conducive to widespread politicisation in the first place. Political salience, in this sense, goes beyond the specific terms of a given trade issue being debated, but rather stems from whether that very issue is or is not debated.

21 Finally, with respect to H2 and the mechanism of solution-chasing, we suggest that CETA provisions on GIs have granted enough flexibility in order for ex post adjustment not to be necessary. Specifically, the CETA has been the first EU FTA to put in place a structured mechanism through which European exporters willing to see their GIs recognised in Canada can do so by following an application procedure (European Commission 2019b: 4). In this light, there are no real winners or losers because the list of EU businesses potentially benefiting from GIs protection under the CETA remains open-ended.