Disputes on TTIP: Does the Agreement Need the Consent of the German Parliament?

Abstract

In February, 2013 US President Barack Obama and EU Commission President Jose Manuel Barroso announced that talks between the United States and the European Union would take place to negotiate an agreement on the Transatlantic Trade and Investment Partnership (TTIP) to create a Transatlantic Free Trade Area (TAFTA). In March 2013, the EU Commission sent to the Council of the EU a recommendation for a Council Decision authorising the opening of negotiations on a comprehensive trade and investment agreement, called the TTIP, between the EU and the USA. On 14 June 2013, the Council (Foreign Affairs, Trade) unanimously approved a mandate to the Commission for the negotiation of such an agreement. On the occasion of that same meeting, the representatives of the governments of the Member States meeting within the Council further mandated the European Commission to negotiate on behalf of the Member States in areas that have remained within the exclusive competence of the Member States in order to allow for a comprehensive trade and investment agreement. This demonstrates that the planned comprehensive agreement is designed to include matters for which the competences have not been conferred upon the European Union (neither as exclusive nor as shared competences) but remain with the Member States in accordance with the principle of conferral (Article 5 paras. 1 and 2, Article 4 para. 1 TEU). The inclusion of these matters entails a so-called mixed agreement between the US on one side and the EU and its Member States on the other side (see below). Additionally, the Council (Foreign Affairs, Trade) adopted directives for the negotiations on the comprehensive TTIP. These directives contain instructions concerning the nature and scope of the agreement, its preamble and general principles, objectives, market access (trade in goods, trade in services and establishment, investment protection, “including areas of mixed competence, such as portfolio investment, property and expropriation aspects”, public procurement), regulatory issues and non-tariff barriers, including sanitary and phytosanitary measures (SPS), rules on intellectual property rights, trade and sustainable development, customs and trade facilitation, existing sectoral trade agreements (e.g. on trade in wine), trade and competition, trade-related energy and raw materials, trade-related aspects of small and medium-sized enterprises, capital movement and payments, transparency, the inclusion of other areas of law, if mutually desired, institutional framework and final provisions.