10.6092/issn.2531-6133/12291
The European Union is pursuing an ambitious trade agenda despite the increased controversy over the negotiating process and substance of trade agreements. This controversy raises questions about the legitimacy of trade agreements, as Cecilia Malmström, former European Commissioner for Trade, has acknowledged.&nbsp; This paper seeks to evaluate the legitimacy of the EU’s agreements, with a focus on the role of the European Parliament as a legitimating actor, given its position as the democratic representative of the public.&nbsp; It argues that the Treaties do not provide for sufficient legitimacy and then considers whether Parliament has been able to use its informal governance tools, particularly the non-binding resolution, to narrow the legitimacy deficit.
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A “Legal Eccentricity”: The European Parliament, its Non-binding Resolution, and the Legitimacy of the EU’s Trade Agreements
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Nina M. Hart
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A “Legal Eccentricity”: The European Parliament, its Non-binding Resolution, and the Legitimacy of the EU’s Trade Agreements
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    llVOLUME 5                                     llISSUE 2                         ARTICLES & ESSAYS



                                UNIVERSITY OF BOLOGNA LAW REVIEW
                                https://doi.org/10.6092/issn.2531‐6133/12291
                                                       A

                A “Legal Eccentricity”: The European Parliament,
                 its Non‐binding Resolution, and the Legitimacy
                          of the EU’s Trade Agreements
                                               NINA M. HART †


                                                   ABSTRACT

    The European Union (EU) is pursuing an ambitious trade agenda despite increased controversy
    over the negotiating process and substance of trade agreements. This controversy raises questions
    about the legitimacy of trade agreements, as Cecilia Malmström, former European Commissioner
    for Trade, has acknowledged. This article seeks to evaluate the legitimacy of the EU’s agreements,
    with a focus on the role of the European Parliament as a legitimating actor. It argues that the
    Treaties do not provide for sufficient legitimacy and then considers whether Parliament has been
    able to use its informal governance tools, particularly the non-binding resolution, to narrow the
    legitimacy deficit.


                                                  KEYWORDS
                           Legitimacy; Trade; European Parliament; Soft Law; Resolution




†
     Ms. Hart is a qualified lawyer in New York and non-practising solicitor in England & Wales. The author is
    grateful to Oana Stefan and Anu Bradford for comments on earlier drafts. The author wishes to specify that
    all views and errors are the author’s alone. Contact: nmh2132@columbia.edu. Orcid iD: 0000-0001-9903-3096.




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                                         A “LEGAL ECCENTRICITY”


                                            TABLE OF CONTENTS


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   328
1. Theories of Legitimacy . . . . . . . . . . . . . . . . . . . . . .        .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   330
2. Legitimacy Deficit? The Treaties’ Allocation of Competences .             .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   332
         2.1 The Legal Context . . . . . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   332
         2.2 An Assessment . . . . . . . . . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   333
3. Filling the Gaps: Soft Law as a Means of Enhancing Legitimacy?            .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   336
         3.1 Input Legitimacy . . . . . . . . . . . . . . . . . . . . .      .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   337
            3.1.1 Improving Opportunities for Participation . . . .          .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   337
            3.1.2 Have Parliament’s Efforts Proved Meaningful? . .           .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   344
            3.1.3 Contextualising Parliamentary Influence . . . . .          .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   349
         3.2 Throughput Legitimacy . . . . . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   355
            3.2.1 Improving Accountability . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   355
            3.2.2 Improving Openness and Transparency . . . . . .            .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   356
 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   359




                               The world is changing, creating two major new challenges that demand
                       new responses from trade policy makers. First, we must keep up with economic
                  developments . . . The second major challenge to trade policy is about legitimacy. 1




      INTRODUCTION

Generating sound trade policy presents significant challenges to policymakers, both in
terms of substance and procedural development.                       This article takes up one of the
challenges identified by former Commissioner Malmström and explores the legitimacy of
a critical piece of the European Union’s [hereinafter EU] trade policy: trade agreements.
The public is concerned about whether trade agreements promote economic growth
while not compromising their values,2 rendering it increasingly important to consider
their legitimacy. A key player in any legitimacy analysis is the European Parliament
[hereinafter Parliament], both as an institution elected to serve as the democratic
representative of EU citizens3 and as one of the institutions that must consent to any
proposed trade agreement. The impact of the first role on the second may take on a new
1
  Cecilia Malmström, European Commissioner for Trade, Liberal International’s Isaiah Berlin Lecture
  at the Yale Club of New York: Liberalism, Free Trade and Other Values (Sept.                          24, 2015),
  https://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153813.pdf.
2
  Id.
3
  Consolidated Version of the Treaty on European Union art. 10(1)-(2), June 7, 2016, 2016 O.J. (C 202) 13
  [hereinafter TEU]; see also Francis Snyder, Soft Law and Governance: Structure and Process in the European Union
  Experience, in THE CHALLENGE OF SOFT LAW (Luo Haocai ed., 2009).


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– or renewed – significance for the other EU institutions during the von der Leyen
Commission’s mandate. More precisely, the 2019 Parliamentary Elections had a turnout
of over fifty percent for the first time in over twenty years.4 This makes it “very difficult”
to conclude that Parliament is not a representative of the public and therefore makes it
increasingly important that the other EU institutions consider Parliament’s views.5
         This article seeks to assess Parliament’s influence on the legitimacy of trade
agreements to date, taking into consideration the relatively limited role provided for it
in the Treaties as well as how it has sought to expand its role via informal governance
tools, particularly the non-legislative, non-binding resolution.                  The non-binding
resolution is of particular significance for several reasons. First, it is one of the most
public “soft law” tools available to Parliament, as it is generally debated and voted upon
in open sessions. Soft law is defined here as “[r]ules of conduct which, in principle, have
no legally binding force but which nevertheless may have practical effects.”6 Second, the
resolution is voted on in plenary and reflects the majority view of Parliament. Third, it is
often used by Parliament to seek commitments from the other EU institutions prior to as
well as during negotiations despite the fact that the Treaties do not give Parliament a
formal role during these stages.           To put it bluntly, the non-binding resolution is
something of a “legal    eccentricity.”7
         To undertake this evaluation, the article first introduces the concept of
legitimacy and sets out how legitimacy will be measured. Next, it explores whether the
Treaties sufficiently legitimise the EU’s trade agreements. Coming to the conclusion that
they do not, the article subsequently analyses whether and how the European
Parliament’s use of the non-binding resolution has affected this legitimacy deficit. To
identify the relevant resolutions, searches of Eur-lex and the European Parliament’s
website were performed using the phrases “trade & resolution,” “trade & [country],” and
“investment & resolution.” All resolutions meeting the following criteria were included
in the study: (1) they were about a particular agreement or addressed trade in a broader
context and (2) they addressed trade policy or negotiations begun or continued after the
Treaty of Lisbon went into effect, as this is when Parliament gained the power of consent
with regard to trade agreements. The contents of these resolutions were then compared
to the texts of the agreements and to other public documents released by the European

4
  Voter Turnout Rises for First Time Ever in EU Elections, Breaking 50%, Euronews (May 28, 2019),
  https://www.euronews.com/2019/05/27/voter-turnout-rises-for-first-time-ever-in-eu-elections-
  breaking-50 (last visited June 28, 2020).
5
  Interview 5 (C). See infra note 8 for an explanation of the author-conducted interviews.
6
  Francis Snyder, SOFT LAW AND INSTITUTIONAL PRACTICE IN THE EUROPEAN COMMUNITY, in THE CONSTRUCTION OF
  EUROPE: ESSAYS IN HONOUR OF EMILE NOËL 197, 198 (Stephen Martin ed., 1994).
7
  Interview 3 (EP).


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                                           A “LEGAL ECCENTRICITY”


Commission [hereinafter Commission] and Council of the European Union [hereinafter
Council] to assess their impact on the legitimacy deficit. Further insight into their
potential effect was obtained by way of ten semi-structured interviews with individuals
affiliated with the institutions directly involved in the negotiation and conclusion
process: the Parliament, Commission and Council.8




       1. THEORIES OF LEGITIMACY

When assessing the legitimacy of a political system, “two main methods” are used, with
one using normative criteria and the other undertaking an empirical analysis.9 This article
adopts the normative approach, which has generally recognised “identity, representation
and accountability, and performance” as the criteria by which to judge legitimacy.10 Not
only are these criteria applied extensively in the literature, but their appropriateness is
supported by some empirical evidence indicating that “[c]itizens appear to use the criteria
of democracy, identity and performance when evaluating the EU.”11
           The literature classifies identity, representation and accountability as “input
legitimacy” and performance as “output legitimacy.”12 As defined by Scharpf, input
legitimacy asks whether a system or governing process is “responsive to the manifest
preferences of the governed.”13 In other words, it asks whether a system includes citizen
and representative participation in decisions taken by the relevant institutions. Output
legitimacy asks whether the “policies adopted . . . effectively solve common problems”
and whether the system is arranged in a manner that prevents abuse of power.14 Few
scholars rely solely on output legitimacy when assessing the EU’s legitimacy. Those that
do submit that the technocratic nature of the EU provides it with sufficient legitimacy by
guaranteeing more centrist and efficient outcomes than might result from more political
8
   All interview participants are anonymised and referred to by a randomly selected number and an
   abbreviation to indicate the institution with which they are affiliated: EP = European Parliament; COM
   = Commission; and C = Council. The interviews were conducted by telephone and in person in Brussels,
   Belgium, between April and May 2019.
 9
   Ronald Holzhacker, Democratic Legitimacy and the European Union, 29 J. EUR. INTEGRATION 257, 259 (2007).
10
   Id. (citing DAVID BEETHAM & CHRISTOPHER LORD, LEGITIMACY AND THE EUROPEAN UNION : POLITICAL DYNAMICS OF
   THE EUROPEAN UNION (1998)).
11
   Piret Ehin, Competing Models of EU Legitimacy: the Test of Popular Expectations, 46 J. COMMON MKT. STUD. 619, 632
   (2008).
12
   Christopher Lord & David Beetham, Legitimizing the EU: Is there a ‘Post-parliamentary Basis’ for its Legitimation?,
   39 J. COMMON MKT. STUD. 443, 444 (2001).
13
   Fritz W. Scharpf, Problem Solving Effectiveness and Democratic Accountability in the EU MAX PLANCK INSTITUTE FOR
   THE STUDY OF SOCIETIES, MPIFG WORKING PAPER, No. 03/1(2003), https://www.mpifg.de/pu/workpap/wp03-
   1/wp03-1.html.
14
   Id. at 1, 3.


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processes.15        By contrast, other scholars contend that output legitimacy cannot
sufficiently legitimise the EU because, if the institutions are not designed to respond to
the public’s changing views, once-agreeable solutions may not be acceptable as time
passes.16 The system, therefore, must provide opportunities for input to ensure that the
relevant actors are responsive.17
           Additionally, some literature includes a third variable known as “throughput
legitimacy,” which addresses how governance processes shape decision making.18 This
variable examines “the efficacy, accountability and transparency of the EU’s governance
processes along with their inclusiveness and openness to consultation with the people.”19
It is viewed as an essential component of any legitimacy analysis because poor
throughput “regularly undermines public perceptions of the legitimacy of EU
governance regardless of how extensive the input or effective the output.”20
           As stated above, the public appears to appraise the EU based on notions of
democracy, identity and performance. Therefore, this article adopts the input and
throughput variables as a means of measuring legitimacy. Output legitimacy, while
significant, is outside the scope of this article, as such an examination merits a more
extensive empirical analysis than can be completed here.21 Furthermore, in relying on
Scharpf ’s theory of input legitimacy, the article focuses primarily on identifying whether
and where there may be input deficiencies rather than outlining the precise conditions
for sufficient legitimacy. This is largely because Scharpf ’s theory does not provide a clear
answer as to when a process is sufficiently responsive (e.g., how much input is enough?)

15
   See, e.g., Andrew Moravcsik, In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union,
   40 J. COMMON MKT. STUD. 603, 603 (2002); Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of
   Standards, 4 EUR. L.J. 5, 5 (1998).
16
   See, e.g., Furio Cerutti, Why Political Identity and Legitimacy Matter in the EU, in THE SEARCH FOR A EUROPEAN
   IDENTITY, VALUES , POLICIES AND LEGITIMACY OF THE EUROPEAN UNION (Furio Cerutti & Sonia Lucarelli eds., 2008).
17
   Jens Steffek, The Output Legitimacy of International Organizations and the Global Public Interest, 7 INT’ L THEORY
   263, 276 (2015); Andreas Føllesdal & Simon Hix, Why There is a Democratic Deficit in the EU: A Response to Majone
   and Moravcsik, 44 J. COMMON MKT. STUD. 533, 549 (2006).
18
   See, e.g., Vivien A. Schmidt, Democracy and Legitimacy in the European Union Revisited: Input, Output and
   ‘Throughput’, 61 POL. STUD. 2 (2013); Thomas Risse & Mareike Kleine, Assessing the Legitimacy of the EU’s Treaty
   Revision Methods, 45 J. COMMON MKT. STUD. 69 (2007).
19
   Schmidt, supra note 18.
20
   Id. at 3, 9.
21
   It has been posited that defining the public interest for purposes of measuring whether a decision comports
   with that public interest must be determined by counterfactual and “ex negativo.” Steffek, supra note 17,
   at 272-73. Given that trade agreements affect different sectors and individuals in divergent ways, and
   in the absence of a uniform definition of public interest, measuring this aspect of output legitimacy is
   exceptionally complex. Consider the disparate views set forth during the European Parliament’s debate on
   the EU-Canada Comprehensive and Economic Trade Agreement, during which even members of the same
   political group could not agree on whether CETA should be approved. European Parliament, Debate: EU-
   Canada Comprehensive Economic and Trade Agreement – Conclusion of the EU-Canada CETA-EU-Canada
   Strategic Partnership Agreement (Feb. 15, 2017), https://www.europarl.europa.eu/doceo/document/CRE-
   8-2017-02-15-ITM-004_EN.html (last visited June 28, 2020).


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                                       A “LEGAL ECCENTRICITY”


or how to weigh the value of different inputs.                    Applying the theory is therefore
context-specific and arguably more amenable to application when identifying
insufficient input and output as opposed to identifying sufficient input and output. Thus,
this article seeks to identify if and where there may be insufficient inputs and analyse
whether the European Parliament can or has played a role in reducing some of these
insufficiencies.




      2.        LEGITIMACY DEFICIT? THE TREATIES’ ALLOCATION OF
      COMPETENCES

Applying the input/throughput variables described above, this part analyses whether the
formal allocation of powers between the EU institutions sufficiently legitimises the EU’s
trade agreements.



     2.1 THE LEGAL CONTEXT

The authority to negotiate and conclude trade agreements is derived from articles 207
and 218 of the Treaty on the Functioning of the European Union [hereinafter TFEU]. As
set out in article 218, the Commission submits recommendations to the Council for a
decision to authorise negotiations, and the Council adopts negotiating directives
addressed to the negotiator (here, the Commission).22                        When negotiations have
concluded, the Commission sends a recommendation to the Council for a decision to
authorise the signing and, “if necessary,” provisional application, of the agreement.23
Once the Council has adopted such a recommendation, the agreement is submitted to the
Parliament for consent, and if obtained, the Council adopts a final decision concluding
the agreement.24         If the agreement includes areas in which the EU does not have
exclusive competence, so-called “mixed agreements,” the Member States must also
approve it.25
           As part of the process, Parliament must “be immediately and fully informed at
all stages,” including “the authorisation to open negotiations, the definition of the

22
   Consolidated Version of the Treaty on the Functioning of the European Union art. 218(2)-(3), June 7, 2016,
   2016 O.J. (C 202) 47 [hereinafter TFEU].
23
   TFEU art. 218(5).
24
   TFEU art. 218(6).
25
   See Op 2/15 [2017] ECLI:EU:C:2017:376 (May 16, 2017); Op 1/94 [1994] ECLI:EU:C:1994:384 (Nov. 15, 1994).


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negotiating directives, the nomination of the Union negotiator … the completion of
negotiations, the authorisation to sign the agreement, where necessary, the decision on
the provisional application … and the conclusion of the agreement.”26 As part of this
obligation, the Commission must report regularly to Parliament.27
          In addition, the EU institutions must, “by appropriate means, give citizens and
representative associations the opportunity to make known and publicly exchange their
views,” and must “maintain an open, transparent and regular dialogue with the
representative associations and civil society.”28 Further, the Commission must “carry out
broad consultations with parties concerned in order to ensure that the Union’s actions
are coherent and transparent.”29



     2.2 AN ASSESSMENT

With regard to input legitimacy, the Treaties envision some opportunities for EU citizens
and stakeholders to participate in the negotiation of trade agreements, as set out in
article 11 of the Treaty on European Union [hereinafter TEU]. Nevertheless, the form and
frequency of consultations and civil society dialogues are not specified, suggesting that
the Treaties themselves do not inherently guarantee meaningful levels of citizen
participation.
          Parliament’s opportunities to provide input present a more complex puzzle, but
the powers granted to Parliament in the Treaties – power to consent or veto a final
agreement and the right to be informed – do not provide for sufficient legitimacy. First,
one might contend that Parliament’s ability to approve or veto decisions to enter into
trade agreements provide adequate input legitimacy, as Parliament legitimises an
agreement by approving it or provides input by rejecting it. However, as reflected in the
controversy about the substance of trade agreements and lack of transparency in trade
negotiations, improving input legitimacy requires a process that provides Parliament
and the public with meaningful access to information and a more nuanced ability to
communicate policy preferences than a yes-no vote. Fundamentally, the process should
reflect more “government by discussion.”30 Consent or a veto may be part of that
discussion, but cannot replace more specific and constructive discussions.                   More
precisely, consent alone fails to reflect the compromises and concerns Parliament may

26
   Case C-263/14, European Parliament v. Council of the European Union, 2016 E.C.R. 76.
27
   TFEU art. 207(3).
28
   TEU art. 11(1)-(2).
29
   TEU art. 11(3).
30
   Scharpf, supra note 13, at 1.


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                                           A “LEGAL ECCENTRICITY”


have notwithstanding its approval; similarly, a veto itself says little about the specific
concerns that led Parliament to issue a vote of disapproval.
           Additionally, relying on Parliament to exercise its veto power to ensure that its
views, and indirectly, the views of EU citizens, may be considered overly optimistic.
Between January 2010 and December 2012, for example, Parliament considered
ninety-nine agreements and vetoed two (and has not vetoed any trade agreements since
then).31 While this suggests that the veto remains important, it also suggests that
Parliament may feel constrained in exercising it, given the amount of time and effort –
often years if not decades – involved in concluding trade negotiations and the political
cost to the EU in attempting to reopen negotiations with a trade partner. Aside from the
most extreme cases, it may be that the Parliament will accept an agreement for political
reasons, even if it would prefer not to, on substantive grounds, which undermines the
view that a veto ensures that EU citizens’ policy concerns have been considered and
voiced through Parliament to the Commission.
           Parliament’s right to be informed is also significant but the TFEU’s brief
presentation of this right similarly suggests little of the “government by discussion”
necessary for adequate input legitimacy.                       The ability to offer input about trade
negotiations reflects “the fundamental democratic principle that the people should
participate in the exercise of power through the intermediary of a representative
assembly.”32 Thus, although Parliament may not be a full participant in negotiations –
the Commission alone presents the EU’s position to trade partners – it must be capable
not only of receiving information but also of sharing its views with the Council and
Commission. The Treaties are silent as to how this should happen, which is increasingly
problematic as trade has become more controversial, thereby making input legitimacy
and Parliament’s ability to engage with the other EU institutions all the more relevant.33
           The Treaties also address some aspects of throughput legitimacy, but the
relevant articles are too vague to ensure that such legitimacy is realised in practise. On
the positive side, the Treaties delineate some lines of accountability. Each EU institution
is allocated a particular role in the process, theoretically making it simple to identify
31
   Youri Devuyst, European Union Law and Practice in the Negotiation and Conclusion of International Trade Agreements,
   12 J. INT’L & BUS L. 259, 314 (2013).
32
   Case C-658/11, Eur. Parl. v. Council, 2014 E.C.R. 81; Laura Feliu & Francesc Serra, The European Union as
   a “Normative Power” and the Normative Voice of the European Parliament, in THE EUROPEAN PARLIAMENT AND ITS
   INTERNATIONAL RELATIONS 17, 25 (Stelios Stavridis & Daniela Irrera eds., 2015).
33
   Other countries have similar executive-legislative divisions of responsibility during negotiations. Despite
   a recognition that a trade partner must be able to negotiate with a single voice, the EU is not alone
   in facing concerns about lack of input from elected representatives of the people during negotiations.
   See, e.g., Kimberly Ann Elliott, The Process for Negotiating U.S. Trade Agreements Needs a Facelift, WORLD POL.
   REV. (Feb. 19, 2019), https://www.worldpoliticsreview.com/articles/27458/the-process-for-negotiating-u-
   s-trade-agreements-needs-a-facelift.


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which actor is responsible for the conduct at issue. Moreover, Parliament is accountable
to the citizens via elections, and members of the Council are accountable to their duly
elected national governments. Accountability of the Commission rests with
Parliament,34 and the obligation to fully inform Parliament is one way of ensuring that
accountability is realised. However, the Treaties offer no clarification as to the meaning
or method of implementing the obligation to fully inform Parliament. On a narrow
reading, all that is required is a one-way interaction, with the Commission providing
information to Parliament, indicating the Treaties do not inherently promote processes
conducive to effective monitoring and oversight. Similarly, although the institutions
have a general obligation to “ensure that [their] proceedings are transparent,”35 there is
no guidance on how to implement it.
           A final, but significant, issue to consider is whether the participation of national
parliaments in the development of trade policy may compensate for some of the
Treaties’ shortcomings. From one perspective, Member States must consent to mixed
agreements, and the approval of each Member State’s government, on behalf of its
public, may lend these agreements an added layer of legitimacy.                                  From another
perspective, this approval may not sufficiently compensate for lack of guaranteed input
during the negotiation of trade agreements. The Treaties themselves do not prescribe
how national parliaments ought to be involved or informed during negotiations. Thus,
domestic law plays a significant role in shaping the influence of national legislatures, and
most EU Member States provide only a “limited role” for their legislatures in this area.36
Moreover, although some national parliaments have sought a stronger role,37 others
question the parliaments’ interest or ability in playing a sustained and larger role in
trade policy. In particular, some EU officials have suggested that national parliaments
lack significant expertise in the area,38 and “are not really reaching out to their European
colleagues” for information or to collaborate.39
           Given the limited legal role that national parliaments have in EU trade policy and
lack of consensus as to how meaningful a role these legislatures may play, the voice of
national parliaments arguably cannot compensate for the Treaties’ inability to guarantee

34
   TEU art. 17(8).
35
   TFEU art. 15(3).
36
   Guillaume Van Der Loo, National Parliaments and Mixed Agreements: Exploring the Legal Bumps in a Rocky
   Relationship, in THE DEMOCRATISATION OF EU INTERNATIONAL RELATIONS THROUGH EU LAW 210, 215 (Juan Santos
   Vara & Soledad Rodríguez Sánchez-Tabernero eds., 2019).
37
   See Jan Wouters & Kolja Raube, Rebels with a Cause? Parliaments and EU Trade Policy After the Treaty of Lisbon, in
   THE DEMOCRATISATION OF EU INTERNATIONAL RELATIONS THROUGH EU LAW195, 202-04 (Juan Santos Vara & Soledad
   Rodríguez Sánchez-Tabernero eds., 2019).
38
   Interviews 4, 6 (COM).
39
   Interview 7 (EP).


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                                         A “LEGAL ECCENTRICITY”


sufficient input and throughput legitimacy. These parliaments also cannot, therefore,
substitute for the European Parliament as a legitimating force. Much could (and should)
be written about the role of national parliaments as legitimating actors, but given the
central role of the European Parliament in all EU trade agreements, this article will focus
solely on the European Parliament.
          In conclusion, the EU’s trade agreements cannot be legitimated solely from the
processes and obligations established in the Treaties.            It is therefore necessary to
consider whether the manner in which the EU institutions behave in practise affects the
agreements’ overall legitimacy.




      3. FILLING THE GAPS: SOFT LAW AS A MEANS OF ENHANCING
      LEGITIMACY?

If the Treaties do not guarantee meaningful levels of participation in the decision making
process and do not inherently promote good governance practises, can soft law alleviate
some of the input and throughput legitimacy deficits? More precisely, for the purposes
of this article, can Parliament use its non-binding resolution to improve legitimacy? As
described above, the non-binding resolution is a significant instrument used by
Parliament – perhaps the most significant, as suggested by several individuals affiliated
with the Parliament and Commission40 – to express its views on trade policy. While
specific requests in these resolutions are not necessarily “red lines,”41 they nonetheless
provide “political guidance” as to what a final trade agreement should include and how
Parliament would like the Council and Commission to conduct the process.42 As set out
below, resolutions feature prominently in how the institutions communicate on trade
policy, suggesting that they are one way of expanding opportunities to provide input and
of promoting better governance processes. However, the impact of the resolutions is
often limited or dependent on a number of practical and legal factors. This part will
discuss both how the resolutions affect legitimacy as well as the limits of their influence.




40
   Interview 1 (EP); Interviews 4, 6 (COM).
41
   Interview 2 (EP); Interview 6 (COM).
42
   Interview 2 (EP).


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     3.1 INPUT LEGITIMACY

Input legitimacy addresses those who are involved in the decision making process,
emphasising direct citizen and representative participation. As discussed above, the
Treaties oblige the EU institutions to permit citizen participation and to be transparent,
which enhances the quality and expands the opportunity for direct participation,43 but
the Treaties fail to explain how these obligations are satisfied. They also require the
institutions to fully inform Parliament, but the content of this duty is not explained, thus
leaving it unclear as to how, or if, it satisfies the need for representative participation.
This section assesses how the non-binding resolution has been used to address these
issues, focusing on Parliament’s efforts to enhance its and the public’s opportunities to
provide input on trade negotiations and evaluating whether such opportunities have
proven meaningful.



     3.1.1 IMPROVING OPPORTUNITIES FOR PARTICIPATION

Parliament has attempted to improve its and the public’s opportunities to participate in
negotiations by calling for increased transparency and development of practises allowing
for greater input.
          Transparency is critical to input legitimacy as a means of ensuring that the
public and Parliament have sufficient information to understand and participate in the
process.      Parliament has been vocal about disclosure, in a number of non-binding
resolutions.       For example, in 2011, Parliament issued a resolution reminding the
Commission to conduct negotiations with “openness” and “to take account the interests
of EU citizens,” while also criticising it for not updating Parliament about negotiations
with Canada “even though these negotiations commenced in October 2009.”44 These
complaints persisted into 2014, with Parliament passing another resolution demanding
to be “informed in advance by the Commission of its intention to launch an international
negotiation” and “at all stages of the procedures for concluding international
agreements,” and thus to “be given access to the Union’s negotiation texts” so that
Parliament’s decisions on trade agreements could be taken after “meaningful”
consideration of all relevant documents.45 In the face of Parliamentary criticism, as well

43
   Alberto Alemanno, Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy, 39
   EUR. L. REV. 72, 88-89 (2014).
44
   European Parliament resolution of 8 March 2011 on EU agriculture and international trade, July 7, 2012,
   para 57, 2012 O.J. (CE 199) 48.
45
   European Parliament resolution of 13 March 2014 on the Implementation of the Treaty of Lisbon with
   Respect to the European Parliament, Sept. 9, 2017, paras 43, 45, O.J. (C 378) 218.


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as criticism from the public and European Ombudsman,46 the Commission published, for
the first time, some of its draft negotiating directives and initial negotiating proposals.47
Amidst further calls from Parliament to improve its efforts,48                                  it eventually
institutionalised these publication practises in its Trade for All strategy.49                                The
Commissioner for Trade also acknowledged that the Commission needed to “work very
closely” with Parliament, as members of Parliament [hereinafter MEPs] “represent our
citizens and they are essential for our work.”50 To that end, the institutions negotiated a
binding Framework Agreement, pursuant to article 295 TFEU, that permits all MEPs,
rather than only members of the Committee on International Trade [hereinafter the
INTA Committee], to access the negotiating documents under specified conditions.51
           Given how important transparency is for participation in the decision making
process, perhaps it is not surprising that Parliament continues to raise the issue with the
Commission.52 This reflects the view of some MEPs that current levels of transparency
are insufficient, as officials who want to review the texts must go to designated reading
rooms, cannot make copies and have limited time to review the documents. Such strict
procedures can make it difficult to develop an opinion about the final agreement,


46
   European Ombudsman, Cases OI/10/2014/RA and OI/11/2014/RA (Transparency and Public
   Participation in Relation to the Transatlantic Trade and Investment Partnership (‘TTIP’) Negotiations),
   https://www.ombudsman.europa.eu/en/opening-summary/en/5463textsc1.
47
   See James Crisp, TTIP Papers Published as EU Ombudsman Demands More Transparency, Euractiv (Jan. 14,
   2015), https://www.euractiv.com/section/trade-society/news/ttip-papers-published-as-eu-ombudsman-
   demands-more-transparency/ (last visited June 28, 2020).
48
   European Parliament resolution of 8 July 2015 containing the European Parliament’s recommendations to
   the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership, Aug.
   11, 2017, para. 2(e)(i), 2017 O.J. (C 265) 35.
49
    European Commission, Trade for All: Towards a More Responsible Trade and Investment Policy (Oct. 2015),
   https://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf [hereinafter Trade for All].
50
   See Cecilia Malmström, European Commissioner for Trade, Statesmen’s Forum (May 4, 2015),
   https://www.csis.org/events/statesmens-forum-dr-anna-cecilia-malmstrom-eu-trade-commissioner
   (last visited June 28, 2020).
51
   European Parliament Press Release, All MEPs to Have Access to Confidential TTIP Documents (Dec. 2,
   2015), http://www.europarl.europa.eu/news/en/press-room/20151202IPR05759/all-meps-to-have-access-
   to-all-confidential-ttip-documents (last visited June 28, 2020).
52
   See, e.g., European Parliament resolution of 16 November 2017 on the EU-Africa Strategy: a boost for
   development, Oct. 4, 2018, para. 34, 2018 O.J. (C 356) 66; European Parliament resolution of 25 February
   2016 on the opening of FTA negotiations with Australia and New Zealand, Jan. 31, 2018, para 12, 2018 O.J. (C
   35) 136; European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation
   to the Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018,
   para 12, 2018 O.J. (C 346) 212; European Parliament resolution of 26 October 2017 containing Parliament’s
   recommendation to the Council on the proposed negotiating mandate for trade negotiations with New
   Zealand, Sept. 27, 2018, para 13, 2018 O.J. (C 346) 219; European Parliament resolution of 15 January 2015 on
   the annual report on the activities of the European Ombudsman 2013, Aug. 18, 2016, paras 24-25, 2016 O.J. (C
   300) 14; European Parliament resolution of 16 September 2015 on the Commission Work Programme, Sept.
   22, 2017, para 82, 2017 O.J. (C 316) 254; European Parliament resolution of 21 January 2016 on the activities of
   the Committee on Petitions 2014, Jan. 12, 2018, para 23, 2018 O.J. (C 11) 105; European Parliament resolution
   of 5 July 2016 on a new forward-looking and innovative future strategy for trade and investment, Mar. 16,
   2018, para 8, 2018 O.J. (C 101) 30.


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especially as the documents “can be a bit out of context and you have to [know] to ask for
certain documents.”53 Moreover, these officials cannot reveal what is in the documents
and the public cannot use the reading rooms, leading some to criticise the arrangement
as ineffective at improving public understanding and awareness.54
          The debate as to the appropriate amount of transparency continues and is
outside the scope of this article, but there may be a fundamental divergence in
Parliament and the Commission’s views based, in part, on their respective roles in
negotiations. Transparency comes with benefits, but it also imposes costs. For instance,
while transparency may permit more informed public participation, it may also limit the
EU’s negotiating flexibility because its trade partners may know or easily determine the
EU’s “redlines.”55 In other words, Parliament may view transparency primarily as a
public (and parliamentary) participation tool, but the Commission may adopt a narrower
view of “sufficient” transparency to preserve its bargaining power and strategic
discussions.56 There may well be a “middle ground” between the maximalist view of
some parliamentarians and the Commission’s position. However one views the ongoing
debate, it is evident that Parliament has played a significant role in encouraging the
Commission to improve disclosure of relevant documents so the public and MEPs can
participate in the process on a more informed basis, which is critical to improving the
input legitimacy of trade agreements.
          With respect to its own opportunities to provide input, Parliament has also
attempted to comment on draft negotiating directives since the opening of the EU-Japan
negotiations, when Parliament requested that the Council delay the vote to authorise the
mandate until it could state its views.57                       This practice reflects Parliament’s
understanding that making its views known early provides it with a greater chance of
influencing the content of the agreements, as resolutions that come toward the end can
be problematic for, and viewed as less credible by, the Commission.58



53
   Interview 9 (EP).
54
   See, e.g., Matthias von Hein, TTIP Reading Room: A small step toward transparency, Deutsche Welle (Jan.
   29, 2016), https://www.dw.com/en/ttip-reading-room-a-small-step-toward-transparency/a-19012651 (last
   visited June 28, 2020).
55
   See, e.g., Eugénia C. Heldt, Contested EU Trade Governance: Transparency Conundrums in TTIP Negotiations, 18
   COMP. EUR. POL.L. 215 (2019); see also Niels Gheyle & Ferdi De Ville, How Much is Enough? Explaining the
   Continuous Transparency Conflict in TTIP, POL . & GOVERNANCE, no. 3, 2017, at 16.
56
   See Panagiotis Delimatsis, TTIP, CETA, TiSA Behind Closed Doors: Transparency in the EU Trade Policy,
   in MEGA-REGIONAL TRADE AGREEMENTS: CETA, TTIP, AND TISA: NEW ORIENTATIONS FOR EU EXTERNAL ECONOMIC
   RELATION 216 (Stefan Griller, Walter Obwexer & Erich Vranes eds., 2017).
57
   European Parliament resolution of 13 June 2012 on EU trade negotiations with Japan, Nov. 15, 2013, 2013 O.J.
   (CE 332) 44.
58
   Interview 6 (COM); Interview 7 (EP).


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                                          A “LEGAL ECCENTRICITY”


                Negotiation            Date Resolution Adopted          Date Mandate Adopted
                United Kingdom         12/02/2020 59                    25/02/2020 60
                Australia              26/10/2017 61                    22/05/2018 62
                Chile                  14/09/2017 63                    10/11/2017 64
                Indonesia              05/07/2016 65                    18/07/2016 66
                Japan                  25/10/2012 67                    29/11/2012 68
                New Zealand            26/10/201769                     22/05/2018 70
                United States          23/05/2013 71                    14/06/2013 72

                                                      Table 1




60
     Council Decision 2020/26, 2020 O.J. (L 58) 53 (Euratom).
61
     European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation to the
Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018, 2018 O.J.
(C 346) 212.
62
 Outcome         of    the   Council     Meeting      (3618th    Council       Meeting)     (May    22,    2018),
https://data.consilium.europa.eu/doc/document/ST-9102-2018-INIT/en/pdf.
63
 European Parliament recommendation of 14 September 2017 to the Council, the Commission and the
European External Action Service on the negotiations of the modernisation of the trade pillar of the EU-Chile
Association Agreement, Sept. 20, 2018, 2018 O.J. (C 337) 113.
64
 Council Decision authorising the European Commission and the High Representative of the Union for Foreign
Affairs and Security Policy to open negotiations, on behalf of the European Union, on the provisions that
fall within the competence of the Union, of a modernised Association Agreement between the European
Union and its Member States, of the one part, and the Republic of Chile, of the other part (Nov. 10, 2017),
https://data.consilium.europa.eu/doc/document/ST-13553-2017-INIT/en/pdf.
65
 European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
trade and investment, Mar. 16, 2018, 2018 O.J. (C 101) 30 (note that Parliament did not make any substantive
requests, but stated only its support for the negotiations).
66
 Outcome       of    the    Council     Meeting     (3481st      Council       Meeting)     (July   18,    2016),
https://data.consilium.europa.eu/doc/document/ST-11338-2016-INIT/en/pdf.
67
 European Parliament resolution of 25 October 2012 on EU trade negotiations with Japan, Mar. 11, 2014, 2014
O.J. (CE 72) 16.
68
 Council of European Union Press Release IP/16919/12, Council Agrees to Launch Free Trade Negotiations
with Japan (Nov. 29, 2012), https://data.consilium.europa.eu/doc/document/ST-16919-2012-INIT/en/pdf.
69
 European Parliament resolution of 26 October 2017 containing Parliament’s recommendation to the Council
on the proposed negotiating mandate for trade negotiations with New Zealand, Sept. 27, 2018, 2018 O.J. (C
 346) 219.
70
   Outcome of the Council Meeting (3618th Council Meeting), supra note 62.
71
   European Parliament resolution of 23 May 2013 on EU trade and investment negotiations with the United
States of America, Feb. 12, 2016, 2016 O.J. (C 55) 108.
72
 Council of European Union Press Release                        IP/10919/13,      Council     Approves    Launch
of      Trade    and    Investment     Negotiations     with    the   United      States    (June   14,    2013),
https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137485.pdf.


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To date, a number of resolutions have been passed in advance of the Council’s decisions
to authorise negotiating mandates: This chronology may suggest that the Council
intentionally gives the Parliament an opportunity to make its views heard.74 However,
the Council’s view is that it generally does not wait for Parliament; rather, Parliament is
simply able to act more quickly than the Council.75                   For the Council to wait is an
exception based on political considerations, such as with the recent decision to authorise
negotiations with the United States for limited agreements on industrial goods and
conformity assessment76 (although, in this case, Parliament failed to pass a resolution on
the negotiations).77 In this respect, Parliament has clearly had less success with the
Council than the Commission with regard to shaping practises that affect input
legitimacy.      Some of the tension on this point appears in an aggressively worded
resolution stating that Parliament has the “prerogative to ask the Council not to
authorise the opening of negotiations until the Parliament has stated its position on a
proposed negotiating mandate.”78 Despite this inter-institutional tension, there may be
some improvements in the future. As suggested in the introduction, given the results of
the 2019 parliamentary elections, the Council may feel more politically constrained with
regard to when it can avoid giving Parliament the chance to comment.79
          Beyond attempting to increase its input opportunities, Parliament has also
sought to protect its input opportunities by seeking to limit the provisional application
of trade agreements. Provisional application prior to a Parliamentary vote has been
increasingly viewed as undermining the power of Parliamentary consent,80 potentially
because Parliament understands that affected parties rely on the new agreement and
withholding consent may cause undue legal and market uncertainty.81 Thus, at the
beginning of 2010, Parliament began passing resolutions, and using other governance
tools to seek commitments from the Commission with regard to provisional application.
In 2010, Parliament asked Commissioner De Gucht during a hearing not to provisionally


74
   Interviews 1, 7, 9 (EP).
75
   Interview 5 (C).
76
   Id. This is almost undoubtedly the case with the decision to open negotiations with the United Kingdom,
   which are arguably more politically sensitive than negotiations with the United States.
77
   European Parliament, Procedure File on Opening of Negotiations between the EU and the US
   (2019/2537(RSP)), https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&referen
   ce=2019/2537 (last visited June 28, 2020).
78
   European Parliament resolution of 13 March 2014 on the Implementation of the Treaty of Lisbon with
   Respect to the European Parliament, Nov. 9, 2017, para 42, 2017 O.J. (C 378) 218.
79
   Interview 5 (C).
80
   Devuyst, supra note 31, at 305.
81
   As suggested above, Parliament may already feel somewhat politically constrained in exercising its ability
   to disapprove decisions to conclude trade agreements. Provisional application may further exacerbate this
   political constraint.


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apply the EU-Korea agreement prior to Parliamentary consent.82                                 Subsequently,
Parliament passed several resolutions requesting the same approach for the proposed
EU-India and EU-Vietnam agreements.83 It also requested Commissioner Malmström to
commit to the same practise via written questions, and she agreed.84 Commissioner
Malmström’s promise notwithstanding, Parliament continues to raise the issue in
resolutions. For example, in its July 2016 resolution on a new trade and investment
strategy, Parliament demanded the Commission not “request provisional application of
trade agreements, including trade chapters of association agreements” and of mixed
agreements prior to Parliamentary consent, and requested this practise be included in an
interinstitutional agreement [hereinafter IIA].85 Parliament made the same demands in
resolutions on the proposed agreements with Australia and New Zealand.86 Much of
Parliament’s emphasis on the issue reflects a suspicion that the Trade Commissioner will
unilaterally change the policy and from the fact that no Commissioners other than Trade
Commissioners have adopted the practise.87
          Despite Parliament’s efforts, the Commission does not seem receptive to
codifying its provisional application practices in an IIA. This reluctance likely stems from
two related issues. First, Parliament has already extracted some binding concessions
with regard to provisional application. Not only has the Trade Commissioner made
guarantees with regard to the issue, but also the Commission has agreed, in a 2010
Framework Agreement, to inform Parliament whenever it believes provisional
application is necessary.88 The Commission as a whole may consider these concessions
82
   See Andrei Suse & Jan Wouters, The Provisional Application of the EU’s Mixed Trade and Investment Agreements,
   in The Conclusion and Implementation of EU Free Trade Agreements 176, 184-86 (Isabelle Bosse-Platière &
   Cécile Rapoport eds., 2019).
83
   European Parliament resolution of 11 May 2011 on the state of play in the EU-India Free Trade Agreement
   negotiations, Dec. 7, 2012, para 36, 2012 O.J. (CE 377) 13; European Parliament resolution of 17 April 2014 on
   the state of play of the EU-Vietnam Free Trade Agreement, Dec. 22, 2017, para 1, 2017 O.J. (C 443) 64.
84
   Suse & Wouters, supra note 82, at 9-11; Cecilia Malmström, Answers to the European Parliament:
   Questionnaire to the Commissioner-Designate 6 (2014), https://www.europarl.europa.eu/hearings-
   2014/resources/questions-answers/Hearings2014_Malmstr%C3%B6m_Questionnaire_en.pdf.
85
   European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
   trade and investment, Mar. 16, 2018, paras 36-37, 2018 O.J. (C 101) 30.
86
   European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation to the
   Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018, para
   21, 2018 O.J. (C 346) 212; European Parliament resolution of 26 October 2017 containing Parliament’s
   recommendation to the Council on the proposed negotiating mandate for trade negotiations with New
   Zealand, Sept. 27, 2018, para 24, 2018 O.J. (C 346) 219.
87
   Interviews 7, 8 (EP). This dynamic appears to have continued into the von der Leyen Commission,
   with Parliament asking for similar commitments from the proposed Trade Commissioners. Phil
   Hogan, Answers to the European Parliament: Questionnaire to the Commissioner-Designate (2019),
   https://www.europarl.europa.eu/resources/library/media/20190927RES62441/20190927RES62441.pdf;
   Valdis Dombrovskis,          Reply to the EP’s Written Questions by Executive Vice-
   President (EVP) for an economy that works for people,                                 Valdis Dombrovskis,
   https://www.europarl.europa.eu/news/files/commissionners/valdis-dombrovskis/en-dombrovskis-
   written-questions-and-answers.pdf.
88
   Framework Agreement on Relations between the European Parliament and the European Commission,
   Annex III, para 7, Nov. 20, 2010, 2010 O.J. (L 304) 47.
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2020]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 5:2


sufficiently respectful of Parliament’s right of consent and that placing the Trade
Commissioner’s practices in an IIA that binds the whole Commission may severely limit
its authority, especially if no exception is made for urgent cases.
           Second, it is not ultimately the Commission that decides whether to provisionally
apply an agreement. The Commission proposes provisional application, but the Council
must approve it.89 This dynamic may go far in explaining the Commission’s hesitance to
accept Parliament’s position. Since the adoption of the 2010 Framework Agreement, the
Council has objected to how the Commission has limited its own discretion, believing it
is allowing Parliament to unlawfully modify the competences set forth in the Treaties.90
Not only that, but the Council remains concerned that the decisions taken by the other
institutions will limit the Council’s autonomy, even threatening to take them to the Court
of Justice if their actions “would have an effect contrary to the interests of the Council
and the prerogatives conferred upon it by the Treaties.”91 Given this pushback from the
Council, the Commission may well be reluctant to further limit its own discretion on an
issue that implicates the Council’s as well.
           These case studies of Parliamentary efforts to improve opportunities for it and
the public to provide input suggest a positive, but not altogether successful, record.
First, by “channeling public concern … and expressing these in its recommendations to
the Commission,”92 Parliament can play a significant role in encouraging greater
transparency, which may allow it and the public to contribute more effectively to the
substance of policy debates.93                Second, by commenting on negotiations by using
resolutions prior to approval of a mandate, Parliament has been able to provide input at
the early stages of negotiations and thereby expanded the opportunities for
representative participation in the process, albeit on an ad hoc basis. Third, by using
resolutions       as    well     as    other      governance         tools,     Parliament        has,     on     a
Commissioner-by-Commissioner basis, largely succeeded in limiting the provisional
application of agreements, thereby protecting its consent authority.




89
   TFEU art. 218(5).
90
   Framework Agreement on Relations between the European Parliament and the Commission, Oct. 23, 2010,
   2010 O.J. (C 287) 1.
91
   Id.
92
   Ramses A. Wessel & Tamara Takács, Constitutional Aspects of the EU’s Global Actorness: Increased Exclusivity in
   Trade and Investment and the Role of the European Parliament, 28 EUR. BUS. L. REV. 103, 114 (2017).
93
   See generally Patrick R. Hugg & Sheila M. Wilkinson, The 2014 European Parliament Elections and the Transatlantic
   Trade and Investment Partnership: Economics and Politics Collide, 24 J. TRANSNAT’ L L.& POL’Y 117 (2014-15).


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                                       A “LEGAL ECCENTRICITY”


     3.1.2 HAVE PARLIAMENT’S EFFORTS PROVED MEANINGFUL?

Although Parliament has significantly expanded its and the public’s access to
information about trade agreements, access alone does not create opportunities to
participate. Furthermore, any such opportunities must be meaningful to positively
impact input legitimacy. This part considers how Parliament’s efforts have affected the
opportunities for Parliamentary and public input. First, with regard to Parliamentary
input, the discussion above indicates that the Parliament has increased its opportunities
to provide input via resolutions, but the question remains as to whether the
opportunities are meaningful.            This section measures the meaningfulness of these
opportunities by assessing whether the non-binding resolutions about the substance of
trade agreements have been taken into account by the other EU institutions, as
evidenced by public documents and statements, as well as information from interviews
conducted by the author. In particular, this article uses several reactions as evidence
that Parliament’s views have been taken into account: (1) substantive changes in
position by another EU institution; (2) public statements addressing Parliament’s
position; and (3) public debate with Parliament.                  While not a perfect measure of
causation, this method provides indicators of Parliamentary influence on trade
negotiations and the behaviour of the other institutions - i.e., whether the institutions
respond to the concerns of the governed. A review of the Commission’s recent approach
to trade policy, reflected in the Trade for All strategy,94 indicates that it has been shaped,
at least in part, by Parliament’s influence, primarily in the fact that it no longer reflects
“a purely economic approach”, but includes a “social and sustainable angle.”95 This can
be seen in a number of issues repeatedly raised in non-binding resolutions and which
now appear routinely in trade agreements.                       For example, the provisions on
anti-corruption and human rights, as well as chapters on small and medium enterprises
and trade and sustainable development are regularly requested96 and included in



94
   See, e.g., Trade for All, supra note 49.
95
   Interview 4 (COM); Interview 2 (EP); Wessel & Takács, supra note 92, at 113.
96
   See, e.g., European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future
   strategy for trade and investment, Mar. 16, 2018, paras 6, 64, 2018 O.J. (C 101) 30; European Parliament
   resolution of 25 February 2016 on the opening of FTA negotiations with Australia and New Zealand, Jan.
   31, 2018, para 7, 2018 O.J. (C 35) 136; European Parliament resolution of 26 October 2017 containing the
   Parliament’s recommendation to the Council on the proposed negotiating mandate for trade negotiations
   with Australia, Sept. 27, 2018, paras 14, 19(f), 2018 O.J. (C 346) 212; European Parliament resolution of
   26 October 2017 containing Parliament’s recommendation to the Council on the proposed negotiating
   mandate for trade negotiations with New Zealand, Sept. 27, 2018, paras 15, 20, 2018 O.J. (C 346) 219;
   European Parliament resolution of 8 July 2015 containing the European Parliament’s recommendations to
   the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership, Aug.
   11, 2017, para 2(d)(xii), 2017 O.J. (C 265) 35.


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 agreements.97         This suggests that the Commission carefully considers and often
 incorporates Parliament’s preferences into trade negotiations.98
           Parliament has also expressed disappointment that “the Commission does not
 address the gender dimension of trade negotiations” in its Trade for All strategy, and
 requested the inclusion of gender-sensitive provisions in future trade agreements.99 The
 Commissioner for Trade agreed to add gender-specific provisions to the Commission’s
 draft negotiating directives and draft texts for the trade chapter of the EU-Chile
 Association Agreement.100 As explained by the Commissioner, the EU’s trade “policies
 are gender neutral, but they are not always gender sensitive.”101 Some of Parliament’s
 concerns have also spilled over to complete agreements. For instance, the EU-Canada
 Comprehensive Trade and Economic Agreement [hereinafter CETA] does not contain
 gender-specific provisions, but the CETA Joint Committee on Trade and Gender issued a
 recommendation in September 2018 to “increase women’s access to and benefit from the
 opportunities created by CETA.”102
           Another example suggesting that increased public and Parliamentary input has
 influenced trade negotiations is the reform of Investor-State dispute settlement
 [hereinafter ISDS] mechanisms. As early as 2011, Parliament expressed reservations
 about ISDS, notably stating in a resolution on CETA that a State-State mechanism and
 domestic courts should be used to resolve investor-State disputes, although adding that
 if an ISDS mechanism were considered, it should not “inhibit future legislation in
 sensitive policy areas.”103 In October 2014, in response to continued Parliamentary and
 public concern, then-Commissioner De Gucht initiated a consultation on the ISDS

97
    See, e.g., Comprehensive Economic and Trade Agreement, Can.-Eur., artt. 18.8, 19.4(4c), Jan. 14 2017, 2017
    O.J. (L 11) 23 [hereinafter CETA]; Strategic Partnership Agreement, Can.-Eur., artt. 2, 28(3), Dec. 3, 2016,
    2016 O.J. (L 329) 45; Agreement between the European Union and Japan for an Economic Partnership,
    Eur.-Japan, chs. 16, 20, Dec. 27, 2018, 2018 O.J. (L 330) 3; Strategic Partnership Agreement, Eur.-Japan,
    artt. 2, 43, Aug. 24, 2018, 2018 O.J. (L 216) 4; EU-Mexico Agreement (in principle) chs. 16, 30, 36,
    https://trade.ec.europa.eu/doclib/press/index.cfm?id=1833 (last visited June 28, 2020).
 98
    See Interviews 3, 8 (EP).
 99
    European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
    trade and investment, Mar. 16, 2018, para 22, 2018 O.J. (C 101) 30.
100
    Joint Recommendation for a Council Decision Authorising the European Commission and the High Representative
    of the Union for Foreign Affairs and Security Policy to Open Negotiations and Negotiate a Modernised
    Association Agreement with the Republic of Chile (May 24, 2017), https://eur-lex.europa.eu/legal-
    content/en/TXT/?uri=CELEX:52017JC0019 (last visited June 28, 2020); Draft Provisions on Trade and
    Gender Equality in the Context of the Modernisation of the EU-Chile Association Agreement, COM,
    http://trade.ec.europa.eu/doclib/docs/2018/june/tradoc_156962.pdf.
101
    Cecilia Malmström, European Commissioner for Trade, speech at the plenary session
    of the European Round Table of Industrialists (ERT): Changes in Trade (May 28, 2018),
    https://trade.ec.europa.eu/doclib/docs/2018/may/tradoc_156894.pd .
102
    CETA Joint Committee on Trade and Gender, Recommendation 002/2018 of 26 September 2018,
    http://trade.ec.europa.eu/doclib/docs/2018/september/tradoc_157419.pdf.
103
    European Parliament resolution of 8 June 2011 on EU-Canada trade relations, Dec. 11, 2012, para 11, 2012
    O.J. (CE 380) 20.


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                                          A “LEGAL ECCENTRICITY”


 reform,104 with his successor, Cecilia Malmström, acknowledging that “ISDS is now the
 most toxic acronym in Europe.”105 Following the consultation, the INTA Committee held
 a public hearing with the Commissioner to share its views on how to reform ISDS.106
 Several months later, the Commission created a Concept Paper, outlining an Investment
 Court System,107 and Parliament soon, thereafter, passed a resolution endorsing the
 approach and calling for the full replacement of ISDS in the proposed Transatlantic
 Trade and Investment Partnership [hereinafter TTIP].108 Commissioner Malmström
 responded to the vote, stating: “What today’s vote also signals is that the old system of
 investor-state dispute settlement should not and cannot be reproduced in TTIP –
 Parliament’s call today for a ‘new system’ must be heard, and it will be.”109 Thereafter,
 the Commission formally released its proposed Investment Court System,110 which is
 now included in several trade agreements.111
           Aside from Parliamentary influence over the Commission’s policy, a review of
 available draft directives, resolutions and final directives shows that, while there is often
 significant policy convergence between the Parliament and the Council,112 several of
 Parliament’s requests have been incorporated into the final mandates, suggesting some
 level of Parliamentary influence within the Council. For example, Parliament requested
 that the draft mandates for Australia and New Zealand be amended to reference the
 sectoral Organisation for Economic Co-operation and Development [hereinafter OECD]
 guidelines and United Nations Guiding Principles on Business and Human Rights and to

104
    See European Commission Press Release, European Commission Launches Public Online Consultation on
    Investor Protection in TTIP (Mar. 27,2014), http://europa.eu/rapid/press-release_IP-14-292_en.htm (last
    visited June 28, 2020).
105
    Malmström, Statesmen’s Forum, supra note 50.
106
    See European Parliament Committee on International Trade, Draft Agenda for 18-19 March
    2015,http://www.europarl.europa.eu/doceo/document/INTA-OJ-2015-03-18-1_EN.pdf,
    EUROPEAN PARLIAMENT COMMITTEE ON INTERNATIONAL TRADE, EXCERPT OF DEBATE ON ISDS (Mar. 18, 2015),
    https://www.youtube.com/watch?v=ybs5TDEuGzE (last visited June 28, 2020).
107
    See generally Concept Paper: Investment in TTIP and Beyond - the Path for Reform, COM (May 5, 2015),
    http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF.
108
    European Parliament resolution of 8 July 2015 containing the European Parliament’s recommendations to
    the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership, Aug.
    11, 2017, para 2(d)(xv), 2017 O.J. (C 265) 35.
109
    European Commission Press Release ST/15/5327, Statement by EU Trade Commissioner Cecilia Malmström
    on the European Parliament’s vote on the TTIP Resolution (July 8, 2015), http://europa.eu/rapid/press-
    release_STATEMENT-15-5327_en.htm (last visited June 28, 2020).
110
    European Commission Press Release IP/15/6059, European Commission Finalises Proposal for Investment
    Protection and Court System for TTIP (Nov. 12, 2015), http://europa.eu/rapid/press-release_IP-15-
    6059_en.htm (last visited June 28, 2020).
111
    See, e.g., CETA ch. 8; EU-Mexico Agreement (in principle) ch. 19; Council Decision 2018/1676, 2018 O.J. (L 279)
    (EU) (EU-Singapore Investment Protection Agreement ch. 3); Council Decision 2019/1096, 2019 O.J. (J175)
    (EU) (EU-Vietnam Investment Protection Agreement ch. 3).
112
    Parliament’s convergence with the views of other EU institutions may serve as a legitimising force. For
    instance, if Parliament expresses approval in a resolution of a Commission position, such approval from the
    representatives of the EU public arguably provides the position additional legitimacy.


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 include provisions requiring that attention be paid to the interests of the overseas
 countries and territories and the outermost regions.113 The final negotiating directives
 incorporated part of the first request regarding the OECD guidelines and also adopted
 the second.114 Similarly, Parliament requested an express reference to the Paris
 Agreement on Climate Change in the EU-Chile Association Agreement,115 which the
 Council included in the final mandate.116 Parliament also successfully requested the
 exclusion of audio-visual services from TTIP.117 Aside from Parliamentary input, there
 remains the question of whether Parliament’s efforts, particularly with regard to
 transparency, have created meaningful opportunities for public input. Parliament’s
 influence has arguably increased transparency vis-à-vis the public with regard to its
 efforts to encourage the Council and the Commission to release selected negotiating
 documents. However, greater transparency alone does not always translate to improved
 or more opportunities for public input, especially since information about trade
 agreements is not always generated in accessible language, such that the public may feel
 more engaged with and capable of offering informed views about trade policy.118 Thus,
 Parliament’s transparency efforts must be considered in conjunction with its efforts to
 increase the Commission’s engagement with the public. In resolutions, Parliament has
 reminded the Commission of its obligation to engage with EU citizens and encouraged
 the Commission to expand its outreach beyond civil society organisations and industry


113
    European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation to the
    Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018, paras
    19(h), (m), 2018 O.J. (C 346) 212; European Parliament resolution of 26 October 2017 containing Parliament’s
    recommendation to the Council on the proposed negotiating mandate for trade negotiations with New
    Zealand, Sept. 27, 2018, paras 20(h), (m), 2018 O.J. (C 346) 219.
114
    European Council, Negotiating Directives for a Free Trade Agreement with Australia 3, 6, 17 (May
    22, 2018), http://data.consilium.europa.eu/doc/document/ST-7663-2018-ADD-1-DCL-1/en/pdf; European
    Council, Negotiating Directives for a Free Trade Agreement with New Zealand 3, 6, 18 (May 22, 2018),
    http://data.consilium.europa.eu/doc/document/ST-7661-2018-ADD-1-DCL-1/en/pdf.
115
    European Parliament recommendation of 14 September 2017 to the Council, the Commission and the
    European External Action Service on the negotiations of the modernisation of the trade pillar of the EU-
    Chile Association Agreement, Sept. 20, 2018, para 1(x), 2018 O.J. (C 337) 113.
116
    Council, Directives for the Negotiation of a Modernised Association Agreement with Chile 29 (Nov. 10, 2017),
    https://www.consilium.europa.eu/media/32405/st13553-ad01dc01en17.pdf.
117
    European Parliament resolution of 23 May 2013 on EU trade and investment negotiations with the United
    States of America, Feb. 12, 2016, para 11, 2016 O.J. (C 55) 108; European Parliament resolution of 12 September
    2013 on promoting the European cultural and creative sectors as sources of economic growth and jobs, Mar.
    9, 2016, para 60, 2016 O.J. (C 93) 95; European Council, Directives for the Negotiation on the Transatlantic
    Trade and Investment Partnership between the European Union and the United States of America para
    21 (June 14, 2013), http://data.consilium.europa.eu/doc/document/ST-11103-2013-DCL-1/en/pdf; Lore Van
    den Putte, Ferdi De Ville & Jan Orbie, The European Parliament as an International Actor in Trade, in EUROPEAN
    PARLIAMENT AND ITS INTERNATIONAL RELATIONS 25, 55 (Stelios Stavridis & Daniela Irrera eds., 2015).
118
    See Heldt, supra note 55, at 217 (transparency improvements in TTIP negotiations “did not help public
    perception”).




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 stakeholders.119 However, Parliamentary influence in this area appears to be relatively
 limited. On the one hand, the Commission’s continued engagements with civil society
 dialogues and consultations converge with Parliament’s concerns. On the other hand,
 the Commission often limits participation in these forums to civil society organisations
 and industry stakeholders – the public cannot always participate by offering input or by
 attending.120 This selective form of public engagement appears to be problematic given
 that the effectiveness of these forums as a means of ensuring input remains debated.
 Consultations occur, but somewhat infrequently; for example, the Commission opened
 negotiations with Australia in 2018 and held only one consultation to date.121
 Furthermore, the timing and contents of consultations have not always been
 well-considered. The 2014 public consultation on the ISDS, for instance, “virtually
 coincided” with the end of the CETA negotiations and “confounded the necessary
 debate” by merging the debate about including the ISDS in the CETA and in the TTIP into
 a single consultation.122         Despite this somewhat limited outreach, the Commission
 deserves credit for announcing a study in April 2020 into the effectiveness of its civil
 society dialogue process123 and publishing documents attempting to explain the
 contents of trade agreements, indicating the Commission is aware of the “disconnect”
 between trade policy and the public.124

119
    See, e.g., European Parliament resolution of 8 July 2015 containing the European Parliament’s
    recommendations to the European Commission on the negotiations for the Transatlantic Trade and
    Investment Partnership, Aug. 11, 2017, para 2(d)(vi), 2017 O.J. (C 265) 35. Parliament has also
    raised this issue in resolutions in other contexts, including WTO negotiations. See, e.g., European
    Parliament resolution of 3 February 2016 containing the European Parliament’s recommendations to
    the Commission on the negotiations for the Trade in Services Agreement (TiSA), para. Q(1)(i)(iv),
    https://www.europarl.europa.eu/doceo/document/TA-8-2016-0041_EN.pdf.
120
    See European Commission, Consultations, https://trade.ec.europa.eu/consultations/#_tab_2020 (last
    visited June 28, 2020) (the target audience for free trade agreement [hereinafter FTA] consultations
    is often limited to industry stakeholders); European Commission, Consultation: Questionnaire
    on the Modernisation of the Trade Pillar of the Modernisation of the EU-Chile Association
    Agreement (2018), https://trade.ec.europa.eu/doclib/docs/2017/november/tradoc_156407.pdf (“This
    questionnaire is targeting European Union (EU) business (companies/business organisations) and
    is not intended to be an open public consultation.”); European Commission, Civil Society Meetings,
    https://trade.ec.europa.eu/civilsoc/meetlist.cfm#year-2020 (last visited June 28, 2020) (note attendees
    must be “civil society organisations”); Vivien A. Schmidt, The European Union: Democratic Legitimacy in a
    Regional State?, 42 J.COMMON MKT. STUD.975, 983 (2004) (“the Commission is mostly concerned with the
    politics of organized interests” – i.e., “civil society”).
121
    See European Commission, Consultations, https://trade.ec.europa.eu/consultations/#_tab_2018 (last
    visited June 28, 2020) (2018 consultation on EU-Australia FTA).
122
    See, e.g, Delimatsis, supra note 56, at 12-13.
123
    See European Commission Press Release, Study on the European Commission Trade Department’s Civil
    Society Dialogue (Apr. 28, 2020), https://trade.ec.europa.eu/doclib/press/index.cfm?id=2134&title=Study-
    on-the-European-Commission-trade-departments-Civil-Society-Dialogue (last visited June 28, 2020).
124
    See, e.g., European Commission, Guide to the EU-Vietnam Trade and Investment Agreements
    (updated Mar.                2019),     https://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154622.pdf;
    European        Commission,           EU-Australia      Trade    Agreement     Factsheet   (June     2018),
    https://trade.ec.europa.eu/doclib/docs/2018/june/tradoc_156941.pdf; European Commission, EU-Mexico:
    Questions and Answers (Apr. 2018), https://trade.ec.europa.eu/doclib/docs/2018/may/tradoc_156874.pdf.


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 In other words, Parliament’s influence in this area has not brought about marked changes
 thus far, but, continued pressure – in conjunction with the Commission’s willingness to
 rethink the issue – may well be worth the effort.
           In conclusion, a review of the substantive policies adopted by the Commission
 and Council demonstrates that the opportunities for Parliamentary input have not been
 wasted. Rather, the input received has often been taken into account, in part or in full,
 which strongly suggests that Parliament’s efforts have enhanced the input legitimacy of
 the EU’s trade agreements in this respect. However, Parliament’s attempts to encourage
 the Commission to increase its openness to public input have been met with less success.
 Opportunities for public input remain relatively limited although continued
 Parliamentary attention to the issue may encourage the Commission to continue
 refining its approach to public involvement.



      3.1.3 CONTEXTUALISING PARLIAMENTARY INFLUENCE

 The discussion above indicates that Parliamentary pressure, particularly via the
 non-binding resolution, has influenced the negotiating process and the substance of
 trade agreements, but this dynamic must be appropriately contextualised. First, the
 non-binding resolution has power only because the Parliament can refuse to give
 consent to a trade agreement, as the Parliament often reminds the other institutions125 -
 “we can sink it, and they know it.”126
           Second, the receptiveness of the other institutions limits Parliamentary
 influence.       With regard to the Council’s mandates, the contents do not reflect
 Parliament’s concerns simply because Parliament asked. There is often significant policy
 convergence between the Council and Parliament, and it is therefore not always clear
 when Parliament has an impact.127 Furthermore, “the Commission and Commissioner
 and DG-Trade have their policy and their own policy agenda” and will adopt only the
 positions that they are “convinced about.”128 To illustrate this, consider the issue of ISDS
 reform. As can be seen from the sequence of events, it was not only Parliament driving

125
    See, e.g., European Parliament resolution of 19 January 2011 on the Interim Partnership Agreement between
    the EC and the Pacific States, May 11, 2012, para 7, 2012 O.J. (CE 136) 19; European Parliament resolution of
    26 October 2017 containing the Parliament’s recommendation to the Council on the proposed negotiating
    mandate for trade negotiations with Australia, Sept. 27, 2018, para 21, 2018 O.J. (C 346) 212; European
    Parliament resolution of 5 May 2010 on the upcoming EU-Canada Summit on 5 May 2010, Mar. 15, 2011,
    para 9, 2011 O.J. (CE 81) 64; European Parliament resolution of 23 May 2013 on EU trade and investment
    negotiations with the United States of America, Feb. 12, 2016, para 25, 2016 O.J. (C 55) 108.
126
    Interview 3 (EP).
127
    See, e.g., Van den Putte et al., supra note 117, at 52-69.
128
    Interview 3 (EP).


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                                       A “LEGAL ECCENTRICITY”


 the debate, but also the Commission, which held a consultation on the issue prior to
 Parliament formally rejecting the use of ISDS in all future agreements. Thus, while
 Parliamentary pressure played a role in shaping the debate, this is also an instance in
 which the views of a Parliamentary majority and the Commission were ultimately
 aligned.129
           By contrast, consider the debate about whether to incorporate sanctions into
 trade agreements to enforce Trade & Sustainable Development [hereinafter TSD]
 chapters. Regarding the trade agreement between the EU, Peru and Colombia, in 2012,
 Parliament passed a resolution expressing regret that the TSD standards were not subject
 to the sanctions mechanisms,130 and later suggested that the parties to this agreement
 consider sanctions as an enforcement tool.131 Parliament asked for similar consideration
 in its resolution on the opening of trade negotiations with Australia.132
           To date, the Commission has declined to adopt a sanctions-based approach,
 which arguably reflects a certain lack of openness to Parliament’s position. Nonetheless,
 the debate around the issue shows a more nuanced dynamic at work. In response to
 Parliament’s focus on the issue, the Commission launched a debate on how to reform
 TSD chapters133 and issued a fifteen-point plan to improve them.134 For some, the lack of
 sanctions in the plan is “disappointing” because “it falls far short of what a lot of the
 Parliament was actually asking for,” and, in their view, proves that the Commission
 “want[s] to be seen to give us something [without] actually going all the way to meet
 Parliament’s expectations.”135
           From the Commission’s perspective, however, there was no majority support for
 a sanctions-based approach in Parliament and thus no convincing political reason to
 abandon the position.136 The Commission’s view of Parliamentary support for sanctions
129
    Wessel & Takács, supra note 92, at 117.
130
    European Parliament resolution of 13 June 2012 on the EU trade agreement with Colombia and Peru, Nov.
    15, 2013, para 1, 2013 O.J. (CE 332) 52.
131
    European Parliament resolution of 16 January 2019 on the implementation of the
    Trade Agreement between the European Union and Colombia and Peru, para 18(d),
    https://www.europarl.europa.eu/doceo/document/TA-8-2019-0031_EN.pdf.
132
    European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation to the
    Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018, para
    19(g), 2018 O.J. (C 346) 212.
133
    See Commission Non-paper on Trade and Sustainable Development (TSD) Chapters in EU Free Trade Agreements
    (FTAs) (Nov. 7, 2017), http://trade.ec.europa.eu/doclib/docs/2017/july/tradoc_155686.pdf; European
    Parliament, Debate: Trade and sustainable development chapters in EU trade agreements (Jan. 16, 2018),
    https://www.europarl.europa.eu/doceo/document/CRE-8-2018-01-16-ITM-015_EN.html (last visited June
    28, 2020).
134
    See European Commission Press Release, Commissioner Malmström Unveils 15-Point Plan
    to Make EU Trade and Sustainable Development Chapters More Effective (Feb.                    27, 2018),
    http://trade.ec.europa.eu/doclib/press/index.cfm?id=1803 (last visited June 28, 2020).
135
    Interview 8 (EP).
136
    Interview 6 (COM); Interview 1 (EP).


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 finds some backing in the language of the resolutions.                         Rather than stating the
 Commission “must” include a sanctions-based approach, a number of resolutions request
 that the Commission should “consider, among various enforcement methods, a
 sanctions-based mechanism.”137 Moreover, if a sanctions-based mechanism were
 something that Parliament “badly wanted” in recent and future trade agreements, “we
 would have had to say no to the agreement” at the consent stage, and this has not yet
 happened.138 For the purposes of evaluating input legitimacy, this demonstrates that
 even when the institutions have different policy preferences, the Commission may still
 make a serious effort to engage with Parliament. In other words, input legitimacy is not
 inherently stymied when the institutions disagree.
           The question of interpreting the resolutions sheds light on another limitation on
 Parliament’s influence.          Sometimes, the resolutions include geopolitical statements
 rather than actual demands. For example, the Parliament twice suggested its support for
 TTIP would be “endangered” if the United States continued its “blanket mass
 surveillance activities” and failed to adequately respect data privacy rights.139 However,
 because the audience for the resolution was the public, refusal to grant consent based on
 these issues seemed “not likely.”140 While such strong statements are unusual, their
 symbolic value may impair the other EU institutions’ ability to interpret when and why
 Parliament will actually withhold its consent, indicating that Parliament should exercise
 caution when deciding what to include in its resolutions lest it undermines its own
 credibility. Of course, the value of a resolution to Parliament may not rest in its influence
 on the other EU institutions, but in the political signals it transmits to certain
 constituencies in the European public. The Commission is undoubtedly aware of this,
 and as seen in the debate about sanctions for TSD chapters, is capable of discerning when
 a parliamentary majority is demanding substantive changes. But what if the Commission
 is mistaken in its view of the message Parliament intended to send? Such a situation may
137
    See, e.g., European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation
    to the Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018,
    para 19(g), 2018 O.J. (C 346) 212.
138
    Interview 2 (EP). Indeed, Parliament approved the FTA between the EU and Vietnam despite continued
    concern about enforcement of TSD chapters, as stated in a non-binding resolution accompanying its
    approval of the FTA. European Parliament non-legislative resolution of 12 February 2020 on the draft Council
    decision on the conclusion of the Free Trade Agreement between the European Union and the Socialist
    Republic of Viet Nam, para 20, https://www.europarl.europa.eu/doceo/document/TA-9-2020-0027_EN.pdf;
    see also Council Decision 2019/753, 2020 O.J. (L 186) 1 (EU).
139
    European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance
    bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic
    cooperation in Justice and Home Affairs, Nov. 9, 2017, para 74, 2017 O.J. (C378) 104; European Parliament
    resolution of 8 July 2015 containing the European Parliament’s recommendations to the European
    Commission on the negotiations for the Transatlantic Trade and Investment Partnership, Aug. 11, 2017,
    para 2(b)(xiii)2017 O.J. (C 265) 35.
140
    Interview 9 (EP).


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                                         A “LEGAL ECCENTRICITY”


 not occur often, but leaving the Commission to sort through the symbolic versus
 substantive may limit Parliament’s ability to affect policy changes.
 A potentially less significant, but nonetheless real limitation on Parliament’s influence
 may be the personalities involved in the policy debates. For example, parliamentary
 staffers from across the political spectrum commend Commissioner Malmström for her
 efforts to engage constructively with Parliament.141 Even some of those who remain
 critical overall – suggesting that she was sometimes too flippant, even “mocking,” in her
 exchanges with the INTA Committee – believe that the Commission and Parliament’s
 working relationship improved from that with the prior Commissioner who may have
 given some MEPs the impression that “he looked down on the European Parliament.”142
 Strained relationships may lead to fewer efforts to communicate as well as less regard for
 the views of the other institutions. Not only could this diminish Parliament’s respect for
 or trust in the Commission, but it may also result in a loss of Parliamentary influence
 within the Commission.
           Additionally, the significance of the non-binding resolution is curtailed to some
 extent by the fact that it is not used frequently throughout the entire negotiating
 process. Understanding that negotiations are fluid, Parliament prefers not to issue
 resolutions while negotiations are ongoing, except when circumstances have changed or
 political developments merit a response.143 This cautious approach sometimes also
 reflects reluctance to commit to a position and an awareness that politically sensitive
 mistakes can be made. For example, in a resolution on palm oil and sustainability,
 Parliament included statistics about Indonesia’s industry.144 On a visit to Indonesia,
 several Indonesian officials showed the resolution to the European delegation, stated
 that the figures were incorrect and asked why they were not consulted about their own
 industry as part of “a serious process” before Parliament adopted the resolution.145
           During periods when MEPs prefer not to issue resolutions, Parliament uses its
 other tools to convey its views. The INTA Committee holds public hearings, as in the
 above example of ISDS reform, and has created monitoring groups - unique to this
 committee - that hold in camera meetings on a monthly basis, during which MEPs discuss
 trade negotiations with the Commission and, occasionally, representatives from third
 countries. Although the full contents of the in camera meetings remain confidential,
 which permits the participants to “have a very frank exchange of views,”146 MEPs

141
    Interview 1 (EP); Interview 3 (EP); Interview 7 (EP); Interview 8 (EP); Interview 10 (EP).
142
    Interview 9 (EP).
143
    Interviews 2, 7, 8 (EP).
144
    European Parliament resolution of 4 April 2017 on palm oil and deforestation of rainforests, Aug. 23, 2018,
    2018 O.J. (C 298) 2.
145
    Interview 3 (EP).
146
    Interview 4 (COM).
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 2020]                         UNIVERSITY OF BOLOGNA LAW REVIEW                               [Vol. 5:2


 provide public summaries to the full committee with details of participants and general
 topics discussed.147      In addition, MEPs ask the Trade Commissioner to answer oral
 questions and send letters or written questions. Oral questions can prove most effective
 when a Commissioner is faced with a unanimous view of the INTA Committee or when
 she may be forced to make a commitment on the record.148 Moreover, submitting oral
 questions and thereby provoking a debate itself provides Parliament an opportunity to
 ensure the Commissioner listens to its views. For instance, in 2015, the Chair of the INTA
 Committee and MEP Schaake sent oral questions to Commissioner Malmström on behalf
 of the entire committee, which the Commissioner then agreed to debate with Parliament
 during a plenary session.149 Letters may also prove effective at ensuring the Commission
 takes notice of Parliament’s concerns. As several Commission officials noted, although
 resolutions are “number one” in terms of Parliamentary influence, a letter from the INTA
 Committee or a cross-party group might be “number two” in influence – “we would take
 that very seriously.”150 For example, in 2018, a cross-party group of thirty-two MEPs sent
 a letter to Commissioner Malmström and High Representative Mogherini to express
 concern about the EU-Vietnam Free Trade Agreement given the deteriorating human
 rights situation in Vietnam.151 Although the letter did not resolve the debate, the
 Commission took notice, with Commission officials mentioning this letter as
 significant.152 That these other tools may influence the Commission’s policies sometimes
 more and sometimes less than non-binding resolutions is not surprising. These other
 tools have the advantage of speed and, for oral questions, direct communication with the
 Commissioner. However, resolutions often reflect a majority view of the Parliament
 while letters or questions from subgroups of Parliament may not. As one interviewee
 explained, even if the Commissioner debates an oral question with Parliament, “you
 don’t normally know where this is going to lead,” as the MEPs engaged in the debate may
147
    See, e.g., Eur.     Parl.    Committee on International Trade Committee Meeting (Feb.      19, 2020),
    https://multimedia.europarl.europa.eu/en/inta-committee-meeting_20200219-1500-COMMITTEE-
    INTA_vd (last visited June 28, 2020) (reports on monitoring groups begins at 16:47). The agenda
    of the meeting can be found at EUR. PARL. DOC. INTA(2020)0219_1 and its minutes at EUR. PARL. DOC.
    INTA_PV(2020)0219_1.
148
    Interviews 1, 9 (EP).
149
    Committee on International Trade on “Question for oral answer O-000116/2015
    to the Commission”, (Sept.30,2015) (remarks of Bernd Lange and Marietje Schaake),
    https://www.europarl.europa.eu/doceo/document/O-8-2015-000116_EN.pdf; See also Eur. Parl. Deb. (2821)
    (Nov.23, 2015), https://www.europarl.europa.eu/doceo/document/CRE-8-2015-11-23-ITM-012_EN.html
    (last visited June 28, 2020).
150
    Interviews 4 and 6 (COM).
151
    Letter from 32 MEPs to High Representative Federica Mogherini and Commission Cecilia Malmström (Sept.
    17, 2018), http://tremosa.cat/noticies/32-meps-send-joint-letter-mrs-mogherini-and-commissioner-
    malmstrom-ask-more-human-rights-progress-vietnam (last visited June 28, 2020).
152
    Interviews 4 and 6 (COM).




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                                         A “LEGAL ECCENTRICITY”


 not represent a majority position.153 Given the different advantages and limits of these
 tools, they might be best described as complementary to, but not substitutes for, the
 non-binding resolution.
           Finally, binding law also limits Parliamentary influence. For an action to improve
 legitimacy, it must be legal, as otherwise the action would itself not be legitimate.154 When
 an institution doubts the legality of Parliament’s request, it is, unsurprisingly, not willing
 to take Parliament’s requests on board. For instance, Parliament has requested that the
 Council wait for it to comment on draft mandates before approving them, and the Council
 has sometimes done so. However, the Council refuses to guarantee that it will wait due
 to concerns about protecting its own discretion and preventing Parliament from, in its
 view, attempting to modify the Treaties’ allocation of competences.155 To overcome this
 resistance, it may be necessary to amend the Treaties to ensure that Parliament has a voice
 at the opening of negotiations, although this solution comes with significant political and
 practical challenges.156
           Despite these limits, the non-binding resolution has proved a significant tool with
 which Parliament has enhanced its ability to influence the substance of trade policy. While
 Parliament does not always achieve its goals, as with its attempts to increase the public’s
 ability to participate more directly in negotiations, it generally receives a response from
 the Commission157 and has arguably influenced the Council’s final mandates. For input
 legitimacy purposes, this responsiveness is critical and demonstrates that Parliament has
 narrowed, but not eliminated, the legitimacy deficit.




153
    Interview 6 (COM). This dynamic is further complicated by the multifaceted aspect of trade agreements.
    Specific topics raised may not lead to a veto, as many other considerations enter Parliament’s calculus. The
    EU-Vietnam debate provides a good illustration. Although a number of MEPs, including the Chair of the
    INTA Committee, raised human rights as a concern on several occasions, Parliament voted 401-192 (with
    40 abstentions) to approve the EU-Vietnam FTA, which does not include more comprehensive enforcement
    mechanisms for TSD chapters than other EU FTAs. After the vote, the Chair of the INTA Committee
    indicated that Parliament ultimately decided that approving the agreement and thereby gaining more
    economic leverage with Vietnam outweighed the remaining concerns, which could be addressed via
    good implementation. See European Parliament Press Release, Parliament Approves EU-Vietnam Free
    Trade and Investment Protection Deals (Feb. 12, 2020) https://www.europarl.europa.eu/news/en/press-
    room/20200206IPR72012/parliament-approves-eu-vietnam-free-trade-and-investment-protection-deals
    (last visited June 28, 2020).
154
    See LINDA SENDEN, SOFT LAW IN EUROPEAN COMMUNITY LAW 26 (2004).
155
    Interview 5 (C).
156
    See Devuyst, supra note 31, at 292.
157
    See Heldt, supra note 55.




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        3.2 THROUGHPUT LEGITIMACY

 Throughput legitimacy addresses how decisions are made and the quality of the
 decision-making processes. As argued above, the Treaties do not provide for sufficient
 throughput because there is no explanation of how Parliament holds the Commission
 accountable, and they do not guarantee openness or transparency in negotiations. Lack
 of such throughput may not only lead to policy that the public views as illegitimate, but
 can also undermine the EU’s efforts to finalise trade agreements. For example, “[t]here is
 in fact a general belief that the failure to agree on [the Anti-Counterfeiting Trade
 Agreement] was a consequence of the lack of good communication.”158 Thus, more
 systematic and open practises that enhance communication between the institutions
 and with the public are essential to developing better throughput legitimacy. This
 section addresses whether and how Parliament’s non-binding resolution has affected
 throughput, first addressing accountability and then, openness and transparency.



        3.2.1 IMPROVING ACCOUNTABILITY

 Of relevance to trade negotiations is Parliament’s role in holding the Commission
 accountable. One of the most important tools for promoting accountability is article
 218(10) TFEU, which states that Parliament is entitled to be “immediately and fully
 informed at all stages of the procedures.” To affect throughput legitimacy, this reporting
 obligation must improve Parliament’s ability to perform its oversight and legislative
 duties. In other words, there must be processes for dialogue between the institutions as a
 means of ensuring that the Commission responds to Parliamentary concerns about any
 information transmitted to it.
             Parliament has repeatedly demanded improved communication from and with
 the Commission via non-binding resolutions.                   As detailed above, some of these
 resolutions address MEP access to negotiating documents. In response, the Commission
 has institutionalised controlled access to these documents in its Trade for All strategy
 and in a framework agreement, which enhances Parliament’s ability to exercise its
 oversight authority. However, as with input legitimacy, MEP access to documents must
 be coupled with an actual dialogue between the institutions to substantially improve
 throughput. As can be seen from the shift in the Commission’s trade policy and its
 willingness to debate Parliament on issues such as ISDS and TSD enforcement, the
158
      Letter from the President of the European Parliament to the European Ombudsman, Eur. Parl. Doc (SEC
      2392/2011/RA) (Jan. 10, 2014), https://www.ombudsman.europa.eu/en/correspondence/en/53286 (last
      visited June 28, 2020).


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 resolution remains a powerful tool for creating such a dialogue. That said, other tools
 play an equally (if not more) important role in promoting throughput, particularly the
 hearings held by INTA and its monitoring groups. These regular hearings promote
 constant communication between the institutions and are rated highly among
 Parliamentary staffers. “We still have some asks as to how it could work even better, but
 . . . we are way better served than many other committees by their respective
 counterparts.”159
              Overall, Parliamentary pressure via the non-binding resolution has improved its
 ability to hold the Commission accountable, particularly through the institutionalisation
 of improved transparency practises. However, the resolution has played a supporting role
 in promoting communication with the Commission during the negotiation process, with
 regular hearings by INTA and its monitoring groups playing a leading role. Nonetheless,
 the influence of the non-binding resolution is not insubstantial, particularly as it has been
 deployed quite successfully to improve Parliament’s access to information, without which
 its oversight capability is significantly impaired.



        3.2.2 IMPROVING OPENNESS AND TRANSPARENCY

 Governance processes that promote openness and transparency are essential to
 throughput legitimacy.160 As described above, Parliament has repeatedly called for the
 Commission to increase public and MEP access to documents relevant to trade
 negotiations. In response, the Commission has adopted standard practises in its Trade
 for All strategy and routinely disclosed its draft negotiating directives and negotiating
 texts to the public.              Given this dynamic, it seems reasonable to conclude that
 Parliamentary pressure has played a significant role in shaping these practises, thereby
 improving throughput legitimacy.
              Parliament’s apparent influence on the Council has been more limited, with its
 non-binding resolution playing a much weaker role in encouraging institutional change.
 First, with respect to Parliament’s ability to comment pre-mandate, the Council has not
 promised to provide Parliament with such an opportunity for all negotiations. Not only
 is the Council concerned about limiting its own discretion, but it may also be unsure
 about how such a commitment would work in practise. Because the Treaties provide no
 role for the Parliament at the pre-mandate stage, it is unclear how differences between
 the institutions should be resolved and what the legal basis would be for potentially

159
      Interview 2 (EP).
160
      See Schmidt, Democracy and Legitimacy in the European Union Revisited, supra note 18.


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 giving precedence to Parliament’s views over the Council’s.161 Moreover, Parliament is
 not always interested in commenting on draft mandates. For instance, Parliament first
 offered its support for updating the EU-Mexico agreement only after the Council
 approved the negotiating directives and, even then, did not make substantive comments
 on the contents of the agreement.162 Thus, even if the Council were inclined to
 guarantee Parliament the right to comment on proposed draft mandates, any
 mechanism would need to address how to handle those situations, potentially by
 imposing a time limit on Parliament’s right to comment.
           Second, Parliament has been active in urging the Council to publicly disclose
 final negotiating mandates. Unlike with other transparency issues, however, a
 significant amount of the pressure on the Council initially came from the Commission, as
 part of its own concerns about the lack of transparency, and from the European
 Ombudsman, who called on the Council to publish the TTIP negotiating mandate.163
 Despite initial reluctance from some Member States who were concerned that disclosure
 would “diminish the Commission’s range of [. . .] discretion during negotiations,”164 the
 Council eventually voted to release the mandate.165 Parliament soon thereafter issued a
 resolution expressing its support for the Council’s decision166 and subsequently called on
 the Council to “publish all previously adopted and future negotiating mandates without
 delay.”167 Although the Commission has since institutionalised its practice of disclosing
 its draft mandates,168 the Council has actively resisted doing so. In the Council’s view,
 “[s]uch a decision is exclusively for the Council to make on a case-by-case basis,”169

161
    See Devuyst, supra note 31, at 315 (proposing the institutionalisation of a procedure to allow Parliament to
    comment on draft directives with a mechanism to resolve differences between the institutions).
162
    European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
    trade and investment, Mar. 16, 2018, para 48, 2018 O.J. (C 101) 30.
163
    See Heldt, supra note 55, at 11; see generally European Ombudsman, Case OI/11/2014/RA,
    Public Disclosure of the Transatlantic Trade and Investment Partnership Negotiating
    Mandate,          https://www.ombudsman.europa.eu/en/summary/en/58303              (last     visited   June
    28, 2020); Letter from European Commissioner for Trade to Minister for the Economy,
    Investment and Small Business, SEC (2017) (May 24, 2017).                 https://ec.europa.eu/carol/index-
    iframe.cfm?fuseaction=download&documentId=090166e5b28a816d&title=CM_signed (last visited June
    28, 2020) (requesting disclosure of EU-Japan mandate).
164
    Heldt, supra note 55, at 13.
165
    See Council of European Union Press Release ST 14095/14, TTIP Negotiating Mandate Made Public (Oct. 9,
    2014), https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/145014.pdf.
166
    European Parliament resolution of 15 January 2015 on the annual report on the activities of the European
    Ombudsman 2013, Aug. 18, 2016, para 25, 2016 O.J. (C 300) 14.
167
    European Parliament resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
    trade and investment, Mar. 16, 2018, para 9, 2018 O.J. (C 101) 30.
168
    See Trade for All, supra note 49.
169
    Draft Council Conclusions on the Negotiation and Conclusion of EU Trade Agreements, Brussels
    European Council, at para 8 (May 8, 2018), http://data.consilium.europa.eu/doc/document/ST-8622-2018-
    INIT/en/pdf, adopted in Council of European Union Press Release 9102/18, Outcome of the Council Meeting
    (May 22, 2018), supra note 62.


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 which is one of the reasons for which the negotiations between all three EU institutions
 on updating the Interinstitutional Agreement on Better Lawmaking170 collapsed.171
           The Council’s concerns are aggravated by the fact that it also views the
 Commission’s practise of disclosing draft mandates as illegal: all decisions regarding
 disclosure belong solely to the Council.172 Furthermore, as indicated above, disclosure
 may limit the Commission’s bargaining power during negotiations, as some literature
 suggests.173 This concern notwithstanding, however, there may well be reason to believe
 that even if the Council does not authorise public disclosure, “negotiating partners will
 probably get a copy of it somehow.”174              Additionally, it does not appear that trade
 partners have been able to unfairly use the mandates, especially as the EU institutions
 publicly release a significant amount of information anyway.175 The debate over public
 disclosure will undoubtedly continue; indeed, Parliament has continued to stress
 disclosure, most recently in resolutions on opening negotiations with Australia and New
 Zealand.176 As the 2019 elections may lead the Council to feel more obligated to consider
 Parliament’s requests, the full effect of Parliament’s efforts on this issue is likely yet to be
 seen.    However, given the Council’s deep-seated concern about protecting its own
 authority, as well as its belief that its position is legally correct, even Parliament’s
 increased political and normative power may be insufficient to overcome the Council’s
 resistance.
           Nonetheless, Parliamentary pressure on the Council may have contributed to
 improved institutional procedures in a more limited respect.                    In prior years, after
 approving a mandate, the Council forwarded the decision to Parliament with a note that
 the mandate was included in an annex. However, the annex itself was not attached. If the
 Parliament wanted to see the mandate, it had to submit a written request.177 In recent
 years, however, the Council revisited its policy, and is now attaching the final
 negotiating directives to the decision transmitted to Parliament.178 The revised policy

170
    Interinstitutional Agreement on Better Law-Making, May 12, 2016, 2016 O.J. (L 123) 1.
171
    Interview 5 (C).
172
    Id.
173
    See, e.g., Heldt, supra note 55.
174
    Interview 5 (C).
175
    Id.
176
    European Parliament resolution of 26 October 2017 containing the Parliament’s recommendation to the
    Council on the proposed negotiating mandate for trade negotiations with Australia, Sept. 27, 2018, para
    12, 2018 O.J. (C 346) 212; European Parliament resolution of 26 October 2017 containing Parliament’s
    recommendation to the Council on the proposed negotiating mandate for trade negotiations with New
    Zealand, Sept. 27, 2018, para 13, 2018 O.J. (C 346) 219.
177
    Interview 5 (C); see also Letter from Bernd Lange to Jeppe Tranholm-Mikkelsen and Marten Van den
    Berg, COM (2016)11117/16 (June 2, 2016), https://data.consilium.europa.eu/doc/document/ST-11117-2016-
    INIT/en/pdf.
178
    Interview 5 (C).


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 2020]                              UNIVERSITY OF BOLOGNA LAW REVIEW              [Vol. 5:2


 may be attributed in part to the use of the non-binding resolution, but also underscores
 that the resolution is often secondary to, or more powerful when used in conjunction
 with, other tools. In this case, at the same time that Parliament was passing resolutions
 related to disclosure of mandates for trade agreements, Parliament prevailed in several
 disputes alleging that the Council failed to “immediately and fully inform” it about the
 agreements negotiated under the Common Foreign and Security Policy.179 The
 combination of these parliamentary tactics may have influenced the Council’s decision
 to automatically forward all the final negotiating mandates for trade agreements to
 Parliament.
              Overall, parliamentary pressure has improved the transparency and openness of
 the EU institutions’ governance processes and thereby improved throughput legitimacy,
 but markedly more so with respect to the Commission than the Council. Given the
 remaining tension between Parliament and the Council, it is not surprising that MEPs
 sometimes describe their relations as “one-way traffic.”180 Thus, although Parliament’s
 efforts have influenced the establishment of improved governance practises, there
 remains significant work to be done towards resolving the debates about how much
 transparency and openness is required or ideal. Until there is a consensus among the EU
 institutions, Parliament’s influence will remain somewhat inconsistent. Nonetheless,
 that Parliament’s efforts have been institutionalised or approved on an ad hoc basis
 suggests it possesses substantial capacity to encourage the other institutions to adopt
 practices that will improve throughput legitimacy.




          CONCLUSION

 Assessing and solving the legitimacy deficit that, amongst other things, makes trade
 agreements so controversial is a continuing challenge. The European Parliament, in its
 role as the democratic representative of the public, has played a significant role in
 attempting to address the issue. In particular, its use of the non-binding resolution has
 proven a powerful normative and political tool for encouraging the other institutions to
 adapt their practises in ways that have improved input and throughput legitimacy on an
 ad hoc or systematic basis.
179
      See C-263/14, supra note 26; C-658/11, supra note 32.
180
      Interview 8 (EP).




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                                           A “LEGAL ECCENTRICITY”


 To date, the Commission has proved an especially receptive partner, not only heeding
 Parliament’s requests for greater openness, but also institutionalising new disclosure
 and transparency practises, thus allowing Parliament and, to a lesser extent, the public
 to offer input on negotiations in a more consistent and informed manner. Although
 there is no guarantee that the von der Leyen Commission will follow suit throughout its
 five-year mandate, given the highly fragmented Parliament that has already displayed an
 attitude of assertiveness vis-à-vis the Commission,181 it is difficult to imagine that a
 retreat from the Juncker Commission’s approach would prove politically sustainable.182
            When the Commission has resisted adopting Parliamentary requests, a
 significant factor appears to be the Council’s resistance to adopting any practise that
 would curb the Council’s discretion or potentially allow Parliament to use soft law to
 modify the Treaties, as can be seen in the debate about provisional application of trade
 agreements. The Council’s resistance can also be seen in the debates about public
 disclosure of negotiating mandates and Parliament’s ability to comment on draft
 mandates.        Nonetheless, it is unfair to tag the Council as anti-transparency, as its
 hesitation reflects reasonable differences of opinion about policy and legality. Moreover,
 the Council has been influenced to some extent by Parliamentary pressure, releasing
 mandates on an ad hoc basis and occasionally waiting for Parliament to comment on
 draft mandates before voting to approve them.
            In sum, Parliament has demonstrated a growing awareness of its own power and
 increasing political savvy in deploying its informal governance tools to influence the
 conduct and substance of trade negotiations. However, its ability to affect the legitimacy
 of trade agreements is especially limited when the other institutions believe

181
    See, e.g., Maia de la Baume, Von der Leyen to Change some Commission Titles, Social Democrats Claim Win,
    Politico (Nov. 13, 2019), https://www.politico.eu/article/von-der-leyen-to-change-some-commission-
    titles-social-democrats-claim-win/ (last visited June 28, 2020); European Parliament Rejects 2 of von der Leyen’s
    Commission Candidates, Deutsche Welle (Sept. 30, 2019), https://www.dw.com/en/european-parliament-
    rejects-2-of-von-der-leyens-commission-candidates/a-50642274 (last visited June 28, 2020); Alex Barker
    & Mehreen Khan, Ursula Von Der Leyen Survives Tight Vote to Win EU Top Job, FIN. TIMES (July 16, 2019),
    https://www.ft.com/content/138afa0e-a7df-11e9-984c-fac8325aaa04.
182
    Over time, this may be particularly true due to the loss of the United Kingdom’s MEPs, which may reduce
    the number of MEPs likely to support the EU’s current trade policy. See Mehreen Khan, How Life After Brexit
    Will Get Uncomfortable for Von Der Leyen, FIN. TIMES (Jan. 27, 2020), https://www.ft.com/content/599d631c-
    40b2-11ea-bdb5-169ba7be433d (last visited June 28, 2020). However, this potential effect has not
    been immediately apparent. For example, Parliament approved CETA in February 2017 by a vote
    of 408-254, with 33 abstentions, and approved the EU-Vietnam FTA and Investment Protection
    Agreements in February 2020 by a vote of 401-192, with 40 abstentions. European Parliament Press
    Release, Parliament Approves EU-Vietnam Free Trade and Investment Protection Agreements (Feb.
    12,      2020),    https://www.europarl.europa.eu/news/en/press-room/20200206IPR72012/parliament-
    approves-eu-vietnam-free-trade-and-investment-protection-deals (last visited June 28,                      2020);
    European Parliament Press Release, CETA: MEPs back EU- Canada Trade Agreement (Feb. 15, 2017),
    https://www.europarl.europa.eu/news/en/press-room/20170209IPR61728/ceta-meps-back-eu-canada-
    trade-agreement (last visited June 28, 2020).


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 Parliament’s demands conflict with or shift the allocation of competences set out in
 binding law.           To resolve some of the remaining debates about transparency and
 Parliamentary input, Treaty amendments may ultimately be the best way forward. Until
 that becomes a realistic option, however, Parliament should continue engaging with the
 other institutions on issues affecting the legitimacy of the EU’s trade agreements.
              In particular, Parliament should consider means of “normalising” certain
 relationships or lines of communication, including by revisiting the idea of creating an
 interinstitutional agreement to cover issues like provisional application (especially if it
 feels more empowered vis-à-vis the Commission than during the Juncker mandate) and
 improving the use of its governance tools. As described above, the Parliament possesses
 a number of tools through which it may provide input and oversight of trade
 negotiations. However, using them effectively can prove challenging given the number
 of demands on Parliament’s attention,183 and Parliament should evaluate how best to
 consistently use its tools to ensure its views are considered and responded to by the
 other institutions. For example, while Parliament holds regular hearings, it may wish to
 consider whether a more constant use of other oversight tools (e.g., letters from the
 INTA Committee, regular written questions to the Commissioner) could improve input to
 and influence on the other institutions. Although these informal governance tools,
 including the non-binding resolution, cannot alone eliminate the legitimacy deficit, their
 ability to diminish it should not be underestimated, especially as Parliament improves its
 ability to strategically deploy them. Perhaps most importantly, use of these tools offers
 the opportunity for continued reflection and debate among the institutions about how
 they can or should engage with the public and with each other.




183
      See, e.g., Interview 8 (EP) (“[T]he monitoring role of the Parliament through these resolutions and follow-up
      has been probably quite weak in the last couple of years, so it could be better … in terms of consistency, in
      terms of involvement, and in terms of resources as well.”).


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