Monitoring bilateral treaty bodies – a new role for the Court of Justice in external economic relations

The EU’s current generation of deep and comprehensive trade agreements usually establish treaty bodies that have considerable decision-making powers in order to facilitate the implementation but also the amendment of the agreement. These bodies are staffed jointly by both parties to the agreement. Recent examples are the Joint Committee under the EU-UK Trade and Cooperation Agreement. The establishment of treaty bodies give the EU’s free trade agreements a certain level of autonomy from the EU’s decision-making structures and internally shift power to the executive, which is directly represented in these bodies. From a separation of powers perspective, such a shift raises pressing questions not only about the ability of the European Parliament to control these bodies (see e.g., Weiss, EUConst 2018) but also about the role of the European Court of Justice (ECJ). The ECJ serves a particular role in EU external relations. While in the internal market the Court shapes the content of rights and freedoms, in external relations it focuses more on ensuring that the institutional balance as enshrined in the Treaties is observed (Cremona, Hart Publishing 2018). External relations are the typical battlegrounds over the correct legal basis, involvement of the European Parliament, and the dividing line between Council’s prerogative under Art 218(9) TFEU to formulate policy and Commission’s right to represent the Union in external relations. In addition, some fundamental principles, such as mutual trust, autonomy of the EU legal order, and sincere cooperation, take particular relevance in external relations (Eckes, CYES, 2021). Another recurring issue for the Court, particularly in the area of common commercial policy, have been the delimitation of competences between the EU and its Member States. Historically, the Court treated these aspects with caution and scepticism. Institutions were not to be expected to just do the right thing. Instead, explicit guarantees were required. Armed with an ex ante judicial review mechanism (Art 218(11) TFEU) the Court could, thus, wield important power over the prospects of negotiations and, indeed, imprint on the institutional design of international agreements. With the structure of trade and investment agreements changing, however, the lines on the battlefield are being redrawn. Recent agreements are characterized by sophisticated multilevel institutional structures that dedicates political, executive and administrative functions to treaty bodies charged with implementing and amending the agreement throughout its lifetime. In this paper we examine the resulting power and the effects for the powers of the Court. The shift from ex ante review to continuous ex post facto control seems to have changed the dynamics of the Court’s role in external relations. The paper (1) examines the institutional structure of post-Lisbon trade and investment agreements, (2) analyses the implications for the Commission’s external powers, (3) conceptualizes the Court’s approach towards assessing these powers, and (4) examines the future implications of establishing numerous treaty bodies on the roles and powers of the EU institutions.