Abstract

Over the last decade, trade negotiations with Canada and the United States met with considerable resistance from non-governmental organisations (NGO). Moreover, the negotiation mandates given to the European Commission were so broad as to include topics falling under so-called mixed competence of the EU and the member states, necessitating not only ratification by the EU Council of Ministers and the European Parliament, but also member states’ parliaments. At some point, these two factors almost seemed to paralyze the EU as a trade negotiator. In the end, however, the EU concluded an agreement with Canada, renegotiated its agreement with Mexico (while also concluding agreements with Singapore and Japan amongst others), while negotiations with the US were suspended. Three factors can account for this puzzling combination of apparent incapacity and blockage and surprising resilience of EU trade policymaking. First, the NGO contestation campaigns did not muster pan‐European but rather only varying degrees of support. Second, in addition to scrutiny by the European Parliament, consensus decision-making in the Council fosters accommodation of the demands of all member states. This leads to a low degree of negotiating autonomy on the part of the European Commission, yet large bargaining power for the European Union, as long as the other side wants agreement. Finally, a recent ruling by the Court of the EU facilitated the decoupling of agreements on portfolio investment and investment arbitration (one of the most difficult hurdles), from all other matters of trade and regulatory cooperation, making it easier to reach agreement.