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EU Member States Controlling the Commission through Negotiating Directives in FTA Negotiations: Unnecessary to Tie a Double Knot?

Johan Adriaensen, Markus Gastinger

Research on the negotiation of Free Trade Agreements (FTAs) in the EU has often focused on the effects of delegating negotiating authority to the Commission. One main interest lay in assessing the Commission's degree of autonomy, i.e. its ability to shape FTAs in line with its preferences despite Member States' control through the Council. The question of Commission autonomy has gained currency in the popular debate on the TTIP negotiations with the USA. Previous scholarly contributions unequivocally deny any significant effect of Negotiating Directives (NDs) on Commission autonomy. We contest this finding by examining the effects of NDs in yet unrivaled detail. In our paper, we propose to split such directives into a finite number of discrete issue areas that are tackled in modern FTAs. To identify the issue areas we draw from the burgeoning literature on the design of FTAs. Each of these issue areas exhibits varying degrees of institutional and international flexibility. Institutional flexibility reflects the degree to which the Council's NDs are considered a constraint by the negotiator. International flexibility of an issue area is determined by the degree to which pre-existing international obligations constrain the negotiator (e.g. multilateral agreements, existing bilateral obligations with other/similar third parties)Our hypothesis is that international and institutional flexibility are inversely correlated. Hence, we expect more stringent ND to occur in issue areas where the existing international system provides ample discretion to the negotiator. We test this claim through a combination of surveys and semi-structured interviews with Member State and Commission negotiators involved in the recently concluded CETA negotiations with Canada. We conclude the analysis by identifying alternative factors that could influence the Commission's flexibility on any given issue (e.g. saliency to Member States, preference heterogeneity in the Council, power asymmetries vis-à-vis the third party).

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