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Trading in Times of Crisis: Democratic Control over the EU’s Unilateral Trade Policy

Published online by Cambridge University Press:  19 June 2025

Thomas Verellen Open the ORCID record for Thomas Verellen [Opens in a new window]
Thomas Verellen*
Affiliation:
Utrecht University School of Law, Utrecht, Netherlands
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Email: t.e.verellen@uu.nl
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Abstract

This article examines the democratic control over the European Union’s unilateral trade policy. It takes as a starting point how crises like COVID-19 and geopolitical tensions have led to the “weaponisation” of trade, making global commerce unpredictable. The EU has responded by modernising its trade instruments, such as anti-dumping measures and new regulations like the Anti-Coercion Instrument. However, these instruments often allow the European Commission to act without parliamentary approval, challenging democratic accountability. The article questions whether a democratic, yet effective, unilateral trade policy is possible for the EU. It reviews the processes behind the EU’s unilateral trade policy, critiques current legitimacy mechanisms and proposes reforms to enhance democratic oversight. Ultimately, it argues that a degree of democratisation of trade policy is feasible without Treaty changes, contributing to broader discussions on maintaining democratic control over executive actions in crises.

Keywords

European Union Lawunilateral trade policydemocracygeopoliticisation

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Articles
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European Journal of Risk Regulation , First View , pp. 1 - 18
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2025. Published by Cambridge University Press

I. Introduction

In times of crisis, whether real or perceived, the executive tends to take charge while parliament is often sidelined. This occurred during the COVID-19 crisis with states across the globe taking emergency measures to contain the virus, and it continues with immigration policy where governments routinely take emergency measures bypassing parliaments.Footnote 1 Emergencies and crises also affect international commerce. Countries may suddenly ban imports of key input materials such as steel or aluminum to protect their industries, causing exporters to redirect trade, prompting new destination countries to impose import restrictions to safeguard their own industries. Or producers in one country may pressure their government by means of aggressive and even violent actions to ban imports of a given product, even if doing so violates existing trade agreements. This occurred in 2023 when Poland banned Ukrainian grain imports following highway blockades by Polish farmers.Footnote 2

Increasingly, countries are also openly using trade as a political tool, bringing about (sometimes unexpected) crises. In 2019, Japan restricted exports vital to South Korea’s tech sector, citing security concerns and insufficient export controls by Seoul, which South Koreans viewed as retaliation for court rulings on wartime labour.Footnote 3 Similarly, in 2021, China banned all Lithuanian imports after Lithuania welcomed a Taiwanese office.Footnote 4 And in January 2025, the second Trump administration imposed tariffs on Canadian and Mexican imports. The executive order cites issues with migrants and drugs, but President Trump has also described the tariffs as a strategy to economically coerce Canada and even integrate it into the United States.Footnote 5

These actions illustrate the growing “weaponisation” of trade, making global commerce less predictable and more crisis-prone.Footnote 6 Such weaponisation impacts the European Union, making it harder to negotiate free trade agreements and resolve disputes via the World Trade Organization (WTO).Footnote 7 This shift has prompted the EU to revamp its unilateral trade tools, including modernising anti-dumping and anti-subsidy measures and introducing new instruments like the Anti-Coercion Instrument, the Foreign Direct Investment Screening Regulation and the Foreign Subsidies Regulation to address economic security concerns.Footnote 8

Not unlike emergency actions by Member States during crises like COVID-19, these new instruments allow the European Commission to act without specific parliamentary approval. As will be discussed further below, different from trade agreements needing Council and Parliament consent, the Commission can impose duties on Chinese electric vehicles without parliamentary approval. A qualified majority of Member States can veto, but without it, the duties proceed. The legislature’s role is limited to passing the initial law enabling these executive actions. Moreover, the EU’s trade policy actions are weakly checked by external legal disciplines due to the paralysis of the WTO Appellate Body.Footnote 9 Therefore, the EU needs alternative, internal mechanisms to ensure executive accountability, including democratic accountability, since representative democracy is fundamental to the EU as per Articles 10(1) and 2 TEU.Footnote 10 This article will demonstrate that, unlike the established democratic control mechanisms in place for the EU’s free trade agreement negotiations and conclusion, democratic accountability in the EU’s unilateral trade policy remains underdeveloped.

The article takes as a starting point that all aspects of EU trade policy should be subject to some form of democratic control. The term “democratic control” here refers to a participatory model of democracy, where trade policy, like other policy areas, is shaped through citizen deliberation.Footnote 11 This premise is not universally accepted. Following the end of the Cold War, trade policy had been depoliticised, legalised and, according to some legal scholars: constitutionalised.Footnote 12 Trade disputes were increasingly resolved through the WTO dispute settlement mechanism rather than through tit-for-tat unilateral trade retaliation, and trade negotiations were conducted by experts who benefitted from a permissive consensus on the benefits of trade liberalisation.Footnote 13 In such a context, democratic legitimacy was not high on the agenda.Footnote 14 This has certainly also been the case in the EU, where trade policy has to an important extent been the purview of the European Commission, an institution the legitimacy of which has been more technocratic than democratic, and where legitimacy was supposed to stem from the public goods the EU succeeds in delivering (output legitimacy) rather than from ability of citizens to shape policy outcomes (input legitimacy).Footnote 15

By contrast, in a world where trade policy is back on the domestic political agenda, where important trading powers such as China and the United States do not share the EU’s commitment to trade liberalisationFootnote 16 , where trade and security imperatives increasingly intermesh, and where the appellate body of the WTO’s dispute settlement mechanism has become non-functional, democratic legitimacy in trade policy re-emerges as an important issue. Enforcement of existing external legal disciplines is subpar, and new unilateral trade instruments often fall out of the scope of those disciplines altogether. At the same time, the EU pursues conflicting objectives in its trade policy, and trade policy continues to have important distributional effects as both liberalisation and protectionism benefit some while harming others. In such an environment, the article takes as a starting point for the analysis that follows that any trade policy must be properly democratically legitimised and controlled.Footnote 17

Thus, taking as a premise that EU trade policy needs to be subject to democratic control, including in the face of crisis, this article engages with the question: is a democratic unilateral trade policy for the EU possible? Does a unilateral trade policy aimed at allowing the EU to address shocks, crises and emergencies in global trade stand in the way of effective democratic control, or can a unilateral trade policy both be effective and democratically accountable? Does strengthening the executive necessarily weaken parliaments, or is it possible to conceive of a unilateral trade policy for the EU that bolsters both the executive and the legislative EU institutions?

To begin to answer these questions, the first section of the article provides a bird’s eye perspective on how EU unilateral trade policy is made. It looks at a representative sample of unilateral trade instruments the EU has adopted or reformed in recent years, and it maps the different procedures that enable the EU institutions and the Member States to make use of these instruments. A second section discusses how decisions are legitimised in this area and explains how existing mechanisms fall short of democratic standards. A third and final section proposes a number of reforms to strengthen democratic control over those decisions, leading to the conclusion that a degree of democratisation is possible, even without Treaty change. By so doing, the article contributes to an ongoing conversation across jurisdictions and disciplines on the possibility of maintaining democratic control over the executive in times of crisis.Footnote 18

II. How decisions are made: A tour d’horizon

As mentioned earlier, the EU’s unilateral trade policy is conducted by means of unilateral trade instruments. These instruments are “unilateral” in the sense that they have been designed and can be wielded without the agreement of another party.Footnote 19 Trade defence instruments, also known as trade remedies, are perhaps the best-known examples of unilateral trade instruments. The EU implements anti-dumping or countervailing duties to tackle unfair trade practices by third countries. These trade defence instruments have been around for many decades, with the first anti-dumping rules dating back to the early twentieth century.Footnote 20 In the European Union, anti-dumping rules were first enacted in the 1990s, following the ratification of the WTO agreements.Footnote 21

As mentioned, more recently the EU has embarked on a legislative programme to significantly expand its unilateral trade policy toolbox. In addition to traditional trade defence instruments such as anti-dumping and anti-subsidy measures, the toolbox now also includes instruments such as the Foreign Direct Investment (FDI) Screening Regulation, the International Procurement Instrument, the Foreign Subsidies Regulation, the Deforestation Regulation, the Anti-Coercion Instrument and the Carbon Border Adjustment Mechanism (CBAM). These instruments pursue different objectives, ranging from tackling unfair trade practices (e.g., anti-dumping and anti-subsidy rules), to protecting the sovereignty of EU Member States and institutions (e.g., the Anti-Coercion Instrument), and fostering sustainable trade (e.g. the Deforestation Regulation.)Footnote 22 Yet, all of these initiatives fit in the Commission’s ambition to strengthen the EU’s “open strategic autonomy,” and to put in place a trade policy that is “open, sustainable, and assertive.”Footnote 23

As far as decision-making procedures are concerned, many such instruments empower an executive body – usually the Commission, exceptionally the Council and, even more exceptionally: the Member States – to adopt decisions and regulations. These legislative acts are thus framework regulations that establish a decision-making system where the legislature delegates powers to the Commission, Council, or Member States. The principal empowers the agent(s) to act, and at the same time it imposes limits on the agent’s ability to do so in an effort to retain a degree of control over the agent’s actions. Despite commonalities, the governance of new unilateral trade instruments varies widely. This is notable given that the Lisbon Treaty aimed to rationalise the delegation of powers to the executive through provisions on implementing and delegated acts. This innovation comes on top of older case law by the Court of Justice of the EU (CJEU) through which the CJEU placed constitutional limits on whether and how the legislature can delegate powers to the executive.Footnote 24

Despite these efforts to discipline the legislature’s freedom to determine the shape and content of delegations to the executive, diversity thus persists. It is useful to plot the different arrangements on a centralisation-decentralisation spectrum. On one end of the spectrum, the Commission has full decision-making powers. Under this model, checks on the Commission are weak. On the other end, individual Member States take decisions. The following section discusses a number of instruments, moving from instruments on the centralisation end toward instruments on the decentralisation end of the spectrum.

1. The Foreign Subsidies Regulation

The Foreign Subsidies Regulation most closely resembles the centralised ideal type.Footnote 25 The regulation aims to address distortions in the EU internal market caused by foreign subsidies. It empowers the Commission to start investigations, to adopt interim measures, to adopt final measures, and to withdraw measures. Final measures take the form of implementing acts in the meaning of Article 291 TFEU.Footnote 26 The adoption of final measures is subject to the Comitology process: to adopt measures, the advisory procedure has to be followed.Footnote 27 Under this procedure, the Commission proposes a draft implementing act to a committee consisting of Member State representatives.Footnote 28 The Member State representatives are invited to issue an opinion on the draft implementing act. They cannot veto the act, however. In this sense, the governance of the Foreign Subsidies Regulation resembles that of competition law instruments. In that context, Member States are not offered an opportunity to veto draft decisions either.

2. Anti-dumping and countervailing duties

Anti-dumping and countervailing duties offer greater opportunities for Member States to shape and, if necessary, block proposed measures. Here, too, the Commission adopts measures. Interim measures are adopted in the same way as measures under the Foreign Subsidies Regulation: the Commission submits a draft implementing act to a Comitology committee, which is invited to offer a non-binding opinion.Footnote 29 By contrast, final measures are adopted following the examination rather than the advisory procedure.Footnote 30 This means that Member States have an opportunity to veto a draft implementing act that proposes to adopt final measures. To do so, a qualified majority of Member States must oppose the final measures – a voting rule known as a reverse qualified majority.Footnote 31

At first sight, the examination procedure offers Member States an important opportunity to operate as a check on the Commission. However, empirical research reveals that Member States very rarely oppose Commission drafts.Footnote 32 While a variety of reasons surely account for this observation, the political economy of trade defence investigations is likely to play a role. To stop the Commission from adopting final measures in an anti-dumping or anti-subsidy investigation, a broad coalition that opposes measures has to materialise. Whether or not this can happen is likely to depend on how widespread the product concerned is used further downstream in the supply chain: the greater the user base, the more opposition to duties is to be expected. Conversely, if an import product is crucial to an industry that is heavily concentrated in one or two Member States, the required coalition is not likely to be found. Alternatively, Member State opposition against duties may materialise out of fear for retaliation. Such a dynamic was at play for example in the 2024 controversy surrounding duties on Chinese electric vehicles, with China possibly retaliating against exports of European brandy, pork and dairy products. This concern prompted a number of Member States, such as Germany and Hungary, to resist the duties, casting doubt on their official adoption.Footnote 33 That said, while episodes such as these grab newspaper headlines, they remain rare.

3. The Blocking Statute

Some unilateral trade instruments also empower the Commission to act by means of delegated acts. The Blocking Statute is worth mentioning in this regard.Footnote 34 The Blocking Statute is a regulation that aims to counteract the effects of foreign extraterritorial sanctions on EU entities. It was adopted following the introduction of US sanctions against Cuba in the 1990s. EU companies doing business with Cuba got caught in the crosshairs of US sanctions due to their extraterritorial reach. The Blocking Statute comes with an annex that contains a list of sanctions legislation adopted by third countries. It stipulates that sanctions included in the annex, or judicial decisions enforcing them, are not acknowledged or enforceable within the EU, and it mandates that EU businesses refrain from complying with these sanctions.Footnote 35 As of fall 2024, the annex contains US sanctions legislation targeting Cuba and Iran.

Relevant for our purposes is that the Blocking Statute empowers the Commission to amend the annex by means of a delegated act.Footnote 36 When the Commission adopts a delegated act, it sends it to the Council and the European Parliament. Both institutions have the opportunity to oppose the delegated act within a set amount of time – two months in the case of the Blocking Statute.Footnote 37 The delegated act does not enter into force if either of the two institutions opposes it. In addition, Council and Parliament can revoke the delegation of powers to the Commission.Footnote 38 In both scenarios, the Council acts by means of a qualified majority, and the European Parliament by means of an ordinary majority of its members. The decision-making dynamic is similar to that under the Comitology examination procedure: Member States and, in this case, members of the European Parliament, must take positive action to prevent a measure from being adopted. This setup grants the Commission a significant degree of autonomy. Yet at least as a formal matter, the delegated act model does offer both the European Parliament and the Council a real option to oppose Commission proposals.

4. The anti-coercion instrument

Moving one step further away from the centralised ideal type toward the decentralised ideal type, we find the Anti-Coercion Instrument.Footnote 39 This instrument empowers the Commission to impose measures in response to acts of economic coercion by a third country that target one or several Member States or EU institutions.Footnote 40 In contrast to the Foreign Subsidies Regulation, mentioned earlier, decision-making powers under the Anti-Coercion Instrument are shared between the Commission and the Council. The Commission starts an investigation; it invites the Council to determine, by means of a qualified majority of its members, that economic coercion has indeed been practiced; if the Council makes such a determination, the Commission can impose measures by means of an implementing act adopted on the basis of the Comitology examination procedure, discussed earlier.

By requiring the Council to take positive action before the Commission can adopt measures, the decision-making dynamic radically changes compared to, for example, the anti-dumping context where Member States have a power to oppose draft implementing acts. If a qualified majority of Member States in support of characterising a given practice by a third country as economic coercion fails to materialise, the Commission cannot adopt measures. Given the diversity of foreign policy positions among the twenty-seven Member States, it is to be expected that the Council will not always follow the Commission’s lead. Stronger still, as the Commission is likely to informally test the waters before adopting a proposal, not many proposals may see the light of day in the first place. As of early 2025, the Council has not identified any cases of economic coercion.

5. Export control

The EU’s export control regulations represent yet a further step toward the decentralised model. Under these rules, Member State authorities are empowered to block the export of certain dual-use items. Dual-use items are goods, software, or technology that can be used for both civilian and military applications. Member State authorities are empowered to block the export of dual-use items listed on an annex to the EU’s export control regulation.Footnote 41 The content of the list mirrors a list of dual-use items set multilaterally, by EU Member States and a number of third countries in the framework of the so-called Wassenaar Arrangement.Footnote 42

Particularly relevant for our purposes is that, in addition to enforcing the abovementioned list, Member States may also unilaterally block the export of dual-use items on public security grounds through the adoption of national control lists. Initially, they do so only for exports from their own territory to locations outside of the EU.Footnote 43 However, the regulation also empowers the Commission to publish compilations of such Member State control lists, which Member States are required to communicate to the Commission.Footnote 44 Exports of items included on such Member State control lists that have also been included in the Commission’s compilation can be blocked by any and all Member State authorities.Footnote 45

This second arrangement grants individual Member States a right of initiative to subject dual-use items to export authorisation, and it grants the Commission a power to make that authorisation requirement binding across the EU, without any further involvement of Member States, Council or Parliament. It takes up an interesting position between the centralised delegated act approach discussed in the framework of the Blocking Statute on the one hand, and the fully decentralised approach taken in the framework of the FDI Screening Regulation, discussed immediately below.

6. The FDI screening regulation

The FDI Screening Regulation can be found at the decentralisation end of the spectrum.Footnote 46 Under this regulation, the EU legislature re-empowered the Member States to make individual decisions on the compatibility of proposed investments on their national territory with public order and public security. The Commission and other affected Member States may issue opinions, with the Commission operating as a clearing house. The Member State that would host the investment must have “due consideration” for these opinions.Footnote 47 If an investment is likely to affect “projects or programmes of Union interest,” it must even take “utmost account” of the opinion of the Commission.Footnote 48 However, the Member State concerned retains the final say: it alone has the power to oppose an investment within its territory. This is a decision-making model that puts a premium on the protection of Member State sovereignty even though the regulation of foreign direct investment falls within the scope of the EU’s exclusive competence to conduct a common commercial policy (CCP).Footnote 49

II. How democratic is the EU’s unilateral trade policy?

The abovementioned overview gives a sense of the diversity of decision-making procedures through which the EU can adopt unilateral trade measures. How democratic are these procedures? Are they subject to meaningful democratic control, understood in a participatory sense as the requirement that the course of trade policy, as any other policy area, should be determined through deliberation by the citizenry?Footnote 50

It is clear that many of the arrangements discussed in the previous section find their rationale not in considerations related to democratic legitimacy, but rather in a desire of the Member States to retain control over the executive institutions to which powers are delegated. In this sense, as Robert Schütze put it, many of these arrangements protect federal rather than democratic values.Footnote 51 The priority of federal over democratic values in the governance of unilateral trade instruments is visible both in the centralised and the decentralised models of decision-making. The Comitology system, for example, through which the European Commission adopts anti-dumping duties is best understood as an effort by Member States to retain control over the Commission as the latter is empowered to engage in executive decision-making. This is evident from the justification offered in the TFEU for the Comitology rules, with Article 291 TFEU referring to “mechanisms for control by Member States of the Commission’s exercise of implementing powers.” This federal safeguard is deemed necessary because implementing acts are an exception to the general rule, laid down in Article 291(1) TFEU, that EU law is implemented by the Member States.Footnote 52

By contrast, the mechanisms of control over the exercise of delegated acts, used for example in the framework of the Blocking Statute, do have a democratic rationale. Article 290(1) TFEU presents delegated acts as non-legislative acts of general application that “supplement or amend certain non-essential elements of the legislative act.”Footnote 53 Here, the delegation is deemed horizontal rather than vertical: the EU legislature delegates powers to the executive.Footnote 54 In such a setup, it makes sense that both the Council and the Parliament, as the two chambers of a bicameral EU legislature, are granted powers of control over the Commission, as Article 290(2) TFEU indeed envisages. Yet, here too, the role of Member States remains more pronounced than that of the European Parliament. By agreeing to the 2016 interinstitutional agreement on Better Law-making and the Common Understanding on Delegated Acts annexed to it, the Commission allowed Member State representatives to review delegated acts prior to their adoption in a system that increasingly resembles the Comitology system.Footnote 55 This ex ante involvement of the Member States comes on top of their ex post role within the Council, which is granted a power to oppose delegated acts after they have been adopted.

Interestingly, where the Parliament does have powers of control, it rarely exercises them. In February 2024, the European Parliament still had to oppose its first trade-related delegated act. It is worth exploring in further detail why this is the case. For an instrument such as the Blocking Statute, mentioned earlier, the reason is straightforward: very few delegated acts have been adopted. For the dual-use export control rules, discussed earlier, the situation is different. Several delegated acts have been adopted since the regulation’s entry into force in August 2021; none of these appear to have been reviewed by the European Parliament.Footnote 56 It is a question worth exploring whether this lack of review is of Parliament’s own choosing or whether it is a consequence of the Parliament lacking the right tools to exercise its review powers. Regardless, it is striking that, even in the sphere of delegated law-making, where oversight mechanisms have a democratic rather than a federal rationale, Member States do exercise review, whereas the European Parliament does not.

The democratic credentials of the delegated act decision-making procedure are thus not beyond reproach. Yet, because of the possibility for the Parliament to oppose delegated acts or even revoke delegations altogether, decision-making by delegated act does offer stronger democratic safeguards than decision-making by implementing act. This difference makes the legislature’s choice between the two types of instrument to be particularly important. This choice is subject to constitutional constraints.Footnote 57 Article 290 TFEU empowers (i) the Commission to adopt (ii) non-legislative acts of general application (iii) to “supplement or amend certain non-essential elements of the legislative act.” By contrast, Article 291(2) TFEU empowers (i) the Commission or, in exceptional cases, the Council, to adopt (ii) “implementing” acts of both individual and general application, (iii) where “uniform conditions for implementing legally binding Union acts are needed.”

The Treaty thus draws a distinction between “supplementing” and “amending” legislation on the one hand, and “implementing” legislation on the other. However, none of these terms are defined in the Treaties. The CJEU has clarified that the power to “implement” should be understood as a power to “provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States.”Footnote 58 Yet it is not clear how “providing further detail in relation to the content of a legislative act,” which requires an implementing act, is any different from “supplementing” that legislative act, which requires a delegated act. The CJEU put the ball back in the court of the political institutions by holding that the choice between implementing and delegated acts is, to an important extent, to be made by the legislature – while at the same time maintaining that the exercise of that choice should comply with the conditions laid down in Articles 290 and 291 TFEU.Footnote 59

A review of existing unilateral trade instruments suggests that, at least in the field of trade policy, the legislature has a preference for implementing over delegated acts. Key instruments, such as the Anti-Coercion Instrument or the anti-dumping and anti-subsidy regulations, empower the Commission to act by implementing rather than delegated act. As discussed, where the legislature opts for implementing over delegated acts, Member States exercise control over the Commission through the Comitology process, while the European Parliament does not have any influence over how the Commission wields its powers.

To the extent that the implementing acts at issue involve the exercise of discretion, controls should protect not only the interests of Member States, but also those of EU citizens as represented in the European Parliament. In this regard, the distinction mentioned earlier between the federal justification of Member State control over implementing acts on the one hand, and the democratic justification of Council and European Parliament control over delegated acts on the other, does not persuade. Both types of delegation, including a delegation of implementing powers, are delegations by the EU legislature to the executive, whereby the former delegates the power to implement the legislative act to the EU executive, overriding the ordinary arrangement whereby the Member States implement EU law.Footnote 60 Since a delegation of “implementing powers” to the Commission is an exercise of public authority by the EU, the exercise of that authority should be under democratic control, as required by Article 10(1) TEU that stipulates that the functioning of the European Union shall be based on representative democracy. Democratic legitimacy in the European Union is derived from two sources: the populations of Member States, represented in the Council and the European Council, and EU citizens, represented in the European Parliament. Both sources should be reflected in the oversight mechanisms applied to the Commission.

The abovementioned democratic shortcoming is further exacerbated by the exclusive nature of the Commission’s right of legislative initiative. In the field of the common commercial policy, the right of initiative rests exclusively with the European Commission; neither Council nor Parliament can propose changes to the delegation of powers to the Commission. This feature of the so-called “Community method” has been praised in the past for its alleged ability to steer that process in the direction of the general interest.Footnote 61 Yet the exclusive nature of the right of initiative becomes problematic in the context of executive rule-making as it prevents the principal (the Council and the Parliament) from sanctioning the agent (the Commission) when the principal considers that the agent has not exercised its powers appropriately. The Commission’s exclusive right of initiative thus stands in the way of a further democratisation of unilateral trade policy whereby, as is the case in the United States as well as many Member States, the legislature is in a position to override the executive by amending the legislation that empowers the executive to act in the first place.

Also in the most decentralised arrangements, democratic oversight is not well developed. Where the framework regulation grants individual Member States decision-making powers, as is the case for the FDI Screening Regulation and the EU’s dual-use export control rules, EU law does not offer any democratic guarantees. To be clear, individual Member States may put in place mechanisms of democratic control, but these mechanisms are likely to vary across Member States, which grants citizens in different Member States different types and degrees of control.Footnote 62 Moreover, national democratic control mechanisms risk creating a mismatch between the constituency that is represented in the national democratic process on the one hand, and the constituency that is affected, e.g., by a proposed investment, or by the export of a given dual-use item, on the other hand. Ultimately, national democratic control mechanisms are not capable of guaranteeing a uniform level of democratic control across the EU. This is problematic considering that the Member States are acting as agents of the EU in this area of exclusive EU competence.

All decisions adopted by either Commission or Council are subject to judicial review by the CJEU. It is sometimes argued that the availability of judicial review makes democratic control over individual decisions redundant, for as long as the executive acts within the scope of its democratically set mandate, the preferences of the citizenry are respected.Footnote 63 In such a framework premised on a procedural conception of legitimacy, it is the responsibility of the CJEU to make sure that those institutions respect the limits of their powers. However, judicial review is no substitute for democratic control of discretion exercised within the scope of the powers that have been delegated to the executive. Even where the Commission’s mandate is narrow and the exercise of its powers is subject to meaningful substantive conditions – as is the case, for example, for trade defence instruments or the Foreign Subsidies Regulation – democratic controls on how the Commission exercises its powers remain vital as the exercise of any power inevitably has a discretionary component.Footnote 64

All in all, democratic controls in the area of the EU’s unilateral trade policy are weak. This stands in contrast both to the legislative procedure, which has gradually democratised since the Maastricht Treaty, and the procedure to conclude international agreements, which, since the Lisbon Treaty, provides for a central role for the European Parliament.Footnote 65 However, delegated rule-making continues to be predominantly controlled by the executive, with the European Parliament having only a limited influence. This reflects what has happened in other jurisdictions, like the United States, where broad delegations of power by Congress grant the Presidency significant discretion in the adoption of unilateral trade measures.Footnote 66

III. Democratising EU unilateral trade policy: A few proposals

There is space and need for a democratisation of the EU’s unilateral trade policy. As argued in the introduction of this article, in a world in which trade, politics and geopolitics increasingly intermesh, it is important that institutions that exercise public authority are subject to democratic control.Footnote 67 To be clear, the methods of such control must be appropriately designed for each specific legislative instrument. Instruments such as the Anti-Coercion Instrument that grant the executive, be it the Commission or the Council, significant amounts of discretionary power are in need of more direct mechanisms of democratic control consisting, for example, of a right for the European Parliament to oppose individual measures, or to oppose a determination that a third country policy constitutes economic coercion. By contrast, for instruments like the Foreign Subsidies Regulation, where the Commission’s powers are subject to more detailed substantive conditions, democratic control may be less direct. This control can include requirements to report regularly to the European Parliament committee or, as will be suggested below, or a possibility for the EU legislature to (refuse to) extend the delegation of powers after a set period.

To achieve maximum democratic control, radical measures are needed that require Treaty change. Extending the right of legislative initiative to the European Parliament would be one such measure that would bring about fundamental change. It would enable the European Parliament to put in motion legislative procedures to amend the Commission’s mandate when a majority in the Parliament considers that the Commission is not exercising the powers delegated to it in an appropriate manner.Footnote 68 Abolishing the distinction between delegated and implementing acts, and providing for federal as well as democratic controls over the exercise of all unified delegated acts would be another. This way, representatives of the peoples of Europe (the Member State executives) and the representatives of the citizens of Europe would both be in a position to shape and control how the Commission exercises delegated powers.

Absent Treaty change, however, then incremental progress is possible. The following four proposals would strengthen the position of the European Parliament in the EU’s unilateral trade policy governance framework.

1. Replace Commission implementing acts of general application with delegated acts

A first proposal is to replace implementing acts of general application with delegated acts. As discussed earlier, the Treaties draw a distinction between implementing and delegated acts, but the distinction is unclear. As mentioned earlier, the Court of Justice holds that “the EU legislature has discretion when it decides to confer on the Commission a delegated power pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU,” while it simultaneously maintains that the conditions set out in those provisions have to be respected.Footnote 69 In any case, in so far as the EU legislature has discretion, it can choose to exercise that discretion to favour the use of delegated over implementing acts. Doing so would strengthen democratic control over the exercise of powers delegated to the Commission as delegated acts grant not only the Council but also the European Parliament a right to oppose individual acts and to terminate the delegation altogether.

There are constitutional limits to this option. In particular, Article 291(1) TFEU makes clear that delegated acts are to be of “general application.” This means that decisions that are not of general application could in any case not be adopted by means of delegated acts. But when is a decision of “general” versus “individual” application? Depending on how wide or narrow a notion this is, there is more or less room for the legislature to delegate powers by delegated rather than implementing act.

The notion of “general application” features prominently in EU procedural law, and in particular in the standing requirements to bring an annulment action. For an individual to have standing, it must either be directly addressed by a measure or be directly and individually affected by it.Footnote 70 If an EU measure does not individually affect a person, the measure is deemed of general application and the individual will lack the necessary standing to challenge the EU measure concerned. The Court of Justice continues to adhere to a narrow conception of what it means for an EU act to affect a person individually. Conversely, the Court is quick to conclude that an act is of general application: whenever an individual is affected by an EU measure solely by virtue of the fact that it is part of a community whose membership is not restricted to that particular individual, the measure is deemed of general application.Footnote 71

In the state aid context – arguably the intra-EU counterpart of the Foreign Subsidies Regulation – the Court has made clear that Commission decisions authorising or prohibiting “national” or “sectoral” schemes of state aid are of general application.Footnote 72 Conversely, the actual beneficiaries of individual aids granted under a system of aids of which the Commission has ordered recovery are, by that fact, individually concerned.Footnote 73 Such decisions to actually grant aid to specific companies are, in other words, of individual rather than general application.

An act is thus fairly quickly of “general application” under EU procedural law, and, by extension, under EU law more generally. This suggests there is more room for the EU to operate via delegated act than is used today, even if a wholesale shift from implementing to delegated acts would not be an option. For example, the Commission could characterise certain government subsidies as distorting the internal market through a delegated act. Similarly, under the Anti-Coercion Instrument, the Commission could determine economic coercion via a delegated act, with lowered thresholds for Member States to oppose such determinations, equivalent to a blocking minority in the Council. Additionally, the Commission could raise import tariffs on specific goods to counter economic coercion using a delegated rather than an implementing act.

2. Upgrade the role of the European Parliament in Comitology

An alternative option to strengthen democratic controls in the EU’s unilateral trade policy consists in upgrading the role of the European Parliament within the Comitology process. This cannot be achieved by amending the Comitology Regulation as the legal basis of this regulation only empowers the EU legislature to adopt rules to introduce “mechanisms for control by Member States of the Commission’s exercise of implementing powers.”Footnote 74 That said, the Comitology Regulation does not exhaust the opportunities of the legislature to provide for controls of the Commission’s exercise of those powers. The legislature could introduce additional controls on a case-by-case basis.Footnote 75 Take the Anti-Coercion Instrument once more, where the Commission may adopt retaliatory measures by means of implementing acts under the examination procedure. The regulation could stipulate that such implementing acts are adopted on the basis of the examination procedure and add an additional opportunity for the European Parliament to oppose a draft implementing act within a three-month period.

Council, Parliament and Commission did agree in the 2016 interinstitutional agreement on Better Law-making that the three institutions would refrain from adding, in Union legislation, procedural requirements which would alter the mechanisms for control set out in Comitology Regulation.Footnote 76 Yet providing for European Parliament involvement would not “alter” the existing control mechanisms set out in the Comitology Regulation. Those mechanisms, which, as mentioned, provide the Member States rather than the European Parliament with control opportunities, would continue to function as set out in the regulation. More upstream, before the Commission submits a draft implementing act to the comitology process, or further downstream, after the comitology committee has had its say, or even in parallel with the Comitology proceedings, the Parliament could be offered an opportunity to oppose the draft implementing act. Drawing additional accountability lines towards the European Parliament would not affect the already existing lines running towards the Member States set out in the Comitology Regulation.

3. Let implementing powers expire after a set amount of time

A third proposal is similar in spirit to the second proposal in that it also aims to transplant elements of the delegated act decision-making process to the implementing act context. Article 290(1) second para. TFEU requires that the basic act in which the EU legislature delegates powers to the Commission explicitly defines the duration of the delegation. For example, in the case of the Export Control Regulation, this period lasts five years.Footnote 77 The Blocking Statute follows the same approach. By contrast, the Commission’s power to sanction distortive foreign subsidies, or injurious dumping or subsidisation is delegated to the Commission for an indefinite time period. If the EU legislature were to let the implementing powers it grants to the Commission expire after a set amount of time, the Commission would have a real interest in paying close attention to the Parliament’s views on how the Commission is wielding its unilateral trade powers.Footnote 78 In particular for instruments the exercise of which is subject to more detailed substantive conditions, such as the Foreign Subsidies Regulation or traditional trade defence instruments, such a technique would be appropriate as it grants the Commission more flexibility in the adoption of individual measures while simultaneously supporting effective democratic oversight.

4. Upgrade the European Parliament’s ex post oversight powers

Moving from ex ante to ex post accountability mechanisms, a fourth and final proposal has to do with the European Parliament’s oversight powers. Oversight implies an ex post focus, a review after the fact, that looks at policies that are or have been in effect, and which thereby allows members of parliaments to check, verify, inspect, criticise, or challenge the activities of the government and public administration.Footnote 79

At present, the European Parliament’s powers to exercise oversight over how the Commission exercises its executive powers are limited when compared to those of other, otherwise comparable legislatures.Footnote 80 The relevant parliamentary committee – in the case of trade policy: the Committee on International Trade (INTA) – can invite members of the Commission to participate in hearings, but it cannot compel them to appear, nor can it compel them to submit information. Article 230 TFEU frames the appearance of the Commission before the Parliament as a right held by the Commission, to be exercised at its own discretion, rather than a duty of the Commission to be fulfilled at the Parliament’s discretion. In a 2010 interinstitutional agreement concluded with the Parliament, the Commission committed that it ‘shall give priority to its presence – at the plenary sittings or meetings of other bodies of Parliament’, and it committed to “ensur[ing] that, as a general rule, Members of the Commission are present at plenary sittings for agenda items falling under their responsibility.”Footnote 81 Yet, “to give priority,” or to ensure to be present “as a general rule” are mere best-efforts obligations; they do not legally require the Commission to be present at a committee hearing. This matters, as it is precisely when the Commission may not want to be present at a hearing that its presence may be most important and that a legal obligation to appear matters most.

That the Parliament cannot legally compel the Commission to appear before it is peculiar given that exercising oversight is part of the core missions of a parliamentary assembly – especially an assembly such as the European Parliament, which operates independently from the executive and as a counter-weight to it.Footnote 82 One relatively straightforward intervention to strengthen the Parliament’s position in this area would be to make it mandatory for members of the Commission to appear before the responsible Parliamentary committee following a request to this end by the latter. Arguably, the duty of sincere cooperation as it applies between institutions already requires the Commission to comply with such requests. It would be useful, however, to codify this obligation by means of an interinstitutional agreement between Commission and Parliament. Such an agreement would be binding on the Commission.Footnote 83

That said, this proposal also has an obvious limitation, already alluded to in the above. In the United States, where Congress holds powerful subpoena powers, Congressional hearings can be followed up by bills. If a bill garners sufficient support to override a presidential veto, it can become law. This allows Congress (the principal) to amend the terms of a delegation of powers to the executive, be it the President or a federal agency such as the United States Trade Representative (the agent). This is not an option in the EU, as amending the delegation requires a proposal by the Commission, which is the agent. To remedy this issue, Parliament could be granted a right of initiative.Footnote 84 As mentioned, this would, however, require Treaty change.

V. Conclusion

None of the above proposals would lead to a full democratisation of the EU’s unilateral trade policy. As three decades of debate among constitutional theorists and constitutional courts on the very possibility of EU democracy tell us, whether democratic control and contestation can be achieved at EU level remains an open question. Assuming that democratisation can be achieved and EU decision-making is not doomed to forever remain executive-dominated, implementing the above proposals would lead to incremental progress in one particular area of EU decision-making in which enhanced democratic controls are urgently needed. By strengthening the position of the European Parliament, the diversity of voices represented in that body can be brought to bear on the EU’s unilateral trade policy. Parliamentarians can exercise democratic oversight over how the Commission wields its unilateral trade powers. Exercising such oversight will become an increasingly important part of the Parliament’s day-to-day as the action in EU trade policy shifts from concluding trade comprehensive agreements towards navigating an increasingly crisis-prone international environment that is less receptive toward the EU’s values of trade liberalisation and multilateralism. In such a context, unilateral trade instruments will play an increasingly important role. It is key that these instruments are subject to effective democratic control.

Competing interests

The author has no conflicts of interest to declare.

References

1 See, e.g., the Dutch government’s plan to declare an “asylum crisis” by means of executive decree, or the German government’s decision to reintroduce border controls on the basis of a tenuous interpretation of the Schengen Border Code’s emergency provisions. Criticising the Dutch government plans, see Hanneke van Eijken, Vincent Seminck and Viola Bex-Reimert, “Het lichtzinnig beroep op een ‘asielcrisis,’ een gevaar voor de rechtsstaat?” (Montaigne Centrum Blog, 18 September 2024) <https://blog.montaignecentre.com/nl/het-lichtzinnig-beroep-op-een-asielcrisis-een-gevaar-voor-de-rechtsstaat/> accessed 26 September 2024.

2 Peter van Elsuwege, “The Ukrainian Grain Imports Saga. A Cynical Example of Realpolitik” (Verfassungsblog, 27 April 2023) <https://verfassungsblog.de/the-ukrainian-grain-imports-saga/> accessed 26 September 2024.

3 Henry Farrell and Abraham Newman, “Japan and South Korea Are Being Pulled into a Low Level Economic War” Washington Post (1 August 2019) <https://www.washingtonpost.com/politics/2019/08/01/japan-has-weaponized-its-trade-relationship-with-south-korea/> accessed 11 November 2019.

4 On the crisis and its implications for the EU, see generally Ljiljana Biukovic, “The Lithuania-China Row: The European Union’s Search for a Strategy and Instruments to Deal with China” (2023) 50 Legal Issues of Economic Integration 391.

5 See United States, Executive Order No. 14193, Imposing Duties to Address the Flow of Illicit Drugs Across Our National Border, 1 Feb. 2025, https://www.whitehouse.gov/presidential-actions/2025/02/imposing-duties-to-address-the-flow-of-illicit-drugs-across-our-national-border/ last accessed 9 March 2025. On US threats to Canadian sovereignty, see Vjosa Isai, “Behind Closed Doors, Trudeau Says Trump Threat to Take Over Canada Is Real” The New York Times (7 February 2025) <https://www.nytimes.com/2025/02/07/world/canada/trump-canada-trudeau.html> accessed 9 March 2025.

6 See generally Rebecca Harding and Jack Harding, Weaponization of Trade: The Great Unbalancing of Politics and Economics (London Publishing Partnership 2017).

7 See here Sophie Meunier and Kalypso Nicolaidis, “The Geopoliticization of European Trade and Investment Policy” (2019) 57 JCMS: Journal of Common Market Studies 103.

8 Thomas Verellen and Alexandra Hofer, “The Unilateral Turn in EU Trade and Investment Policy” (2023) 28 European Foreign Affairs Review 1. Discussing the rise of EU unilateralism, and highlighting how the EU’s turn to unilateralism is caused in part by its frustration with contemporary multilateralism, see also Jed Odermatt, “Convergence through EU Unilateralism” in Elaine Fahey (ed), Framing Convergence with the Global Legal Order: The EU and the World (Hart Publishing 2020).

9 On the paralysis of the WTO Appellate Body, see, e.g., Bernard Hoekman and Petros C Mavroidis, “Burning Down the House? The Appellate Body in the Centre of the WTO Crisis” (European University Institute 2019) 56 <https://www.ssrn.com/abstract=3424856> accessed 28 October 2019.

10 See in this sense also Thomas Verellen, “Imperial Presidency versus Fragmented Executive? Unilateral Trade Measures and Executive Accountability in the European Union and the United States” (2023) 24 German Law Journal 1127.

11 On the notion of democratic control, see more generally Cristina Lafont, Democracy without Shortcuts: A Participatory Conception of Deliberative Democracy (Oxford University Press 2019).

12 On the constitutionalisation of the WTO, see generally Deborah Z Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford University Press 2005).

13 Discussing the demise of this paradigm in the EU context, see generally Meunier and Nicolaidis (n 7).

14 See however Dani Rodrik’s globalisation “trilemma,” according to which policy makers can only have two out of the following three things: sovereignty, globalisation and democracy. Rodrik’s trilemma can be read as a democratic critique of globalisation in the early 2010s. See Dani Rodrik, The Globalization Paradox: Why Global Markets, States, and Democracy Can’t Coexist (Oxford University Press 2011). See relatedly Robert Howse and Kalypso Nicolaidis, “Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?” (2003) 16 Governance 73.

15 On the distinction, see Fritz W Scharpf, “De-Constitutionalisation and Majority Rule: A Democratic Vision for Europe” (2017) 23 European Law Journal 315, 315.

16 See here Mark Wu, “The ‘China, Inc.’ Challenge to Global Trade Governance” (2016) 57 Harvard International Law Journal 64.

17 Highlighting the importance of democratic legitimacy in unilateral trade policy, see also Verellen (n 10) 1140–2. This holds all the more true as democratic values are under threat globally, and several of the EU’s trading partners actively undermine democratic processes within the European Union. As part of the EU’s constitutional identity, democracy is in need of protection. Referring to Art 2 values as part of the ‘very identity’ of the EU as a legal order, see Case C-156/21, Hungary v Parliament and Council, EU:C:2022:97, para 127.

18 The debate on whether meaningful democratic controls – and constitutional safeguards more broadly – are possible in the face of crisis can be traced back to the controversy between Carl Schmitt and Hans Kelsen in Weimar-era Germany and Austria, with the former answering the question in the negative and the latter in the positive. On the controversy, see generally Lars Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Lars Vinx tr, Cambridge University Press 2015). Echoes of Schmitt and Kelsen can be heard in debates in the United States, including in the context of foreign policy – see, e.g., debate between Eric Posner and Adrian Vermeule on the one hand, and Jack Goldsmith on the other on the existence and possibility of constitutional constraints – including Congressional checks – on the US presidency in Eric A Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford University Press 2011); Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (1 edition, W W Norton & Company 2012). More recently, the second Trump administration has embraced a conception of executive power irreconcilable with Madisonian notions of checks and balances. See Jack Goldsmith, “The President’s Favorite Decision: The Influence of Trump v. U.S. in Trump 2.0” (Lawfare, 2 October 2025). <https://www.lawfaremedia.org/article/the-president-s-favorite-decision--the-influence-of-trump-v.-u.s.-in-trump-2.0> accessed 9 March 2025.

19 Jed Odermatt, for example, defined “unilateralism” as the “various policies that are adopted by a state or international organisation that have certain external effects, where those policies have not been consented to or agreed upon with other states and organisations.” See Odermatt (n 8) 56.

20 Canada was allegedly was the first nation to adopt anti-dumping duties in 1904. See Dan Ciuriak, “Anti-Dumping at 100 Years and Counting: A Canadian Perspective” (2005) 28 The World Economy 641.

21 Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, 6.3.1996, p 1–20.

22 Comparing the rationales of the different instruments, see generally Ferdi De Ville, Simon Happersberger and Harri Kalimo, “The Unilateral Turn in EU Trade Policy? The Origins and Characteristics of the EU’s New Trade Instruments” (2023) 28 European Foreign Affairs Review 15.

23 Communication from the Commission to the European Parliament, the Council, the European Social and Economic Committee and the Committee of the Regions, Trade Policy Review – An Open, Sustainable and Assertive Trade Policy, COM(2021) 66 final, 18.2.2021. Exploring the emergence of “open strategic autonomy,” see generally Luuk Schmitz and Timo Seidl, “As Open as Possible, as Autonomous as Necessary: Understanding the Rise of Open Strategic Autonomy in EU Trade Policy” (2022) n/a JCMS: Journal of Common Market Studies 1.

24 On this history, see generally Merijn Chamon, The European Parliament and Delegated Legislation: An Institutional Balance Perspective (Hart 2022) ch 3.

25 Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market, OJ L 330, 23.12.2022, p 1–45 (the Foreign Subsidies Regulation).

26 Ibid, Arts 11, 25 and 31.

27 Ibid, Art 48(2).

28 Art 4 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, p. 13–18 (the Comitology Regulation).

29 For anti-dumping interim measures, see Art 7(4) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union, OJ L 176, 30.6.2016, p 21–54 (the Anti-dumping Regulation). For provisional countervailing measures, see Art 12(3) of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union, OJ L 176, 30.6.2016, p 55–91 (the Anti-subsidy Regulation).

30 Arts 9(4) of the Anti-dumping Regulation and 15(1) of the Anti-subsidy Regulation.

31 Art 5 of the Comitology Regulation.

32 See Christian Freudlsperger, ‘The Politics of EU Trade Defence’ (SciencesPo Paris 2014) 4 4.: “[I]n an institutional and procedural setting, which is already marked by significant Commission discretion and limited oversight on the part of Member States, the consistent political division within the Council between ‘Friends of TDI,’ opponents thereof, and swing states explains why the vast majority of Commission proposals for permanent measures are ultimately adopted by EU governments.”

33 Giovanna Coi, Douglas Busvine and Koen Verhelst, “Mission Impossible: Germany’s Bid to Kill EU Duties on Chinese EVs” POLITICO (24 September 2024) <https://www.politico.eu/article/eu-duties-electric-cars-euoropean-union-autos/> accessed 24 September 2024.

34 Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, OJ L 309, 29.11.1996, p 1–6 (the Blocking Statute).

35 Ibid, Arts 4-5. Discussing the Blocking Statute, see, e.g., Cedric Ryngaert, “Interpreting an Unsatisfactory EU Blocking Statute: Bank Melli Iran” (2023) 60 Common Market Law Review.

36 Ibid, Art 1 second para.

37 Ibid, Art 11(5).

38 Ibid, Art 11(3).

39 Regulation (EU) 2023/2675 of the European Parliament and of the Council of 22 November 2023 on the protection of the Union and its Member States from economic coercion by third countries, OJ L, 2023/2675, 07.12.2023 (the Anti-Coercion Instrument). For an early analysis, see generally Lukas Sebastian Schaupp, “The EU’s Anti Coercion Instrument between EU Strategic Autonomy and Member State Sovereignty” (European University Institute 2023) Working Paper <https://cadmus.eui.eu/handle/1814/76168> accessed 13 December 2023.

40 Ibid, Art 1(2).

41 Art 3(1) of Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items, OJ L 206, 11.6.2021, p 1–461 (the Export Control Regulation).

42 Ibid, Art 17. On the Wassenaar Arrangement, see Machiko Kanetake, “Dual-Use Export Control: Security and Human Rights Challenges to Multilateralism” in M Bungenberg and others (eds), European Yearbook of International Economic Law 2020 (Springer Berlin Heidelberg 2021) 10–11 <http://link.springer.com/10.1007/8165_2021_67> accessed 22 April 2021.

43 Ibid, Art 9(1).

44 Ibid, Art 9(2)-(4).

45 Ibid, Art 10(1).

46 Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, OJ L 79I, 21.3.2019, p 1–14 (the FDI Screening Regulation).

47 Art 6(9) of the FDI Screening Regulation.

48 Art 8 of the FDI Screening Regulation. In the Commission’s 2024 proposal to reform the regulation, it proposes that a new regulation be adopted on the basis of two legal bases, Art 207 and 114 TFEU on the common commercial policy and the internal market, respectively. This additional legal basis is justified, the Commission argues, because the reformed screening mechanism would also apply to intra-EU investments by companies established in the EU with a third country person in the ownership chain. See European Commission. (2024). Proposal for a Regulation of the European Parliament and of the Council on the screening of foreign investments in the Union and repealing Regulation (EU) 2019/452 of the European Parliament and of the Council. {SWD(2024) 23 final} – {SWD(2024) 24 final}, p 11.

49 Art 207(1) TFEU.

50 On the notion of democratic control, see Lafont (n 11).

51 Robert Schütze, “’Delegated’ Legislation in the (New) European Union: A Constitutional Analysis” (2011) 74 The Modern Law Review 661, 693.

52 Interestingly, this has not always been the official justification for the central role of Member State representatives in the Comitology system. Prior to the Lisbon Treaty, the Union legislature was entitled to control implementing legislation because it had delegated its powers to the executive. See here ibid 688.

53 Art 290(1) TFEU.

54 The distinction is not persuasive, since in both instances the EU legislature is delegating powers to the executive. Making this same point, see Schütze (n 53) footnote 155.

55 In this sense, see Carlo Tovo, “Delegation of Legislative Powers in the EU: How EU Institutions Have Eluded the Lisbon Reform” [2017] European Law Review 29, 692, noting that the consultation procedure for the adoption of delegated acts and the traditional comitology procedures are increasingly converging.

56 A search on the European Parliament’s Legislative Observatory, filtered by procedural rule 111 on delegated acts, reveals that none of the delegated acts adopted since 2021 pertain to export control.

57 See here Chamon (n 26) 53 et seq.

58 Case C-427/12, Parliament v Council (‘Biocides’), EU:C:2014:170, para. 39. See similarly Case C-88/14, Commission v Parliament and Council (“Visa Reciprocity”), EU:C:2015:499, para 30.

59 In the Biocides judgment, the CJEU held in particular that “the EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Arte 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU.” Ibid, para 40. Criticizing the near “unfettered discretion” of the legislature in this area, see Tovo (n 57) 284.

60 In this sense, see also Schütze (n 53) footnote 155: “Despite the formal(ist) distinction between ‘delegated’ and ‘implementing power,’ the acts adopted under Art 291 TFEU are, too, the result of a delegation in a primary act.”

61 Emile Noel, “The Commission’s Power of Initiative” (1973) 10 Common Market Law Review 123, 123., mentioning that the “Treaty provisions impose certain duties on the Commission and give it, in return, means of action-the duty to assemble vast amounts of information and to seek the widest advice in order to establish what is in the general interest of the Community.”

62 Depending on the degree of institutional independence the legislature enjoys from the executive, the legislature may be in a position to amend legislation empowering the national executive to screen investments without executive support. If this is a possibility, it may not be necessary to include additional control mechanisms in the relevant framework legislation.

63 The legitimacy of institutions that must be independent to effectively fulfil their mission is often explained in legal terms. For example, the European Central Bank’s actions are considered legitimate as long as it stays within its mandate as set out in the Treaties. See, e.g., the following remarks by a then member of the Executive Board of the ECB:

Accountability can only be achieved relative to the definition of the mandate given to the central bank and ultimately the fulfilment of this mandate can only be judged with reference to observable variables. The more clearly and precisely this mandate is defined, the easier it will be to monitor the performance of the central bank. The more clearly and narrowly the mandate is defined, the easier it will also be in a democracy to justify the delegation of powers to an unelected body, since value judgements and trade-offs concerning several unranked objectives should naturally remain the preserve of democratically elected representatives (Otmar Issing, “The Eurosystem: Transparent and Accountable or ‘Willem in Euroland’” (1999) 37 JCMS: Journal of Common Market Studies 503, 508–9.)

64 In this sense, see Verellen (n 10) 1140–2.

65 Pointing to a similar bifurcation in the US context, see Kathleen Claussen, “Trade’s Security Exceptionalism” (2020) 72 Stanford Law Review 1097.

66 Timothy Meyer and Ganesh Sitaraman, “Trade and the Separation of Powers” (2019) 107 California Law Review 583, 647.

67 Referring to the growing significance of geopolitics in EU trade policy as triggering a “geopoliticisation” thereof, see Meunier and Nicolaidis (n 7).

68 At present, the European Parliament adopts so-called “Own Initiative Reports” to try to shape the EU legislative agenda. A power to adopt reports is of course not a substitute for a power to start a legislative procedure. On the influence of Own Initiative Reports, see generally Michael Webb and Amie Kreppel, “The European Parliament’s Role as an Informal EU Agenda Setter: The Influence of Own Initiative Reports” (2021) 99 Public Administration 304.

69 See, e.g., Case C-88/14, Commission v Parliament and Council (‘Visa Reciprocity’), EU:C:2015:499, para 28.

70 Art 263 fourth para TFEU.

71 In Plaumann, the seminal case on the issue, this meant that Plaumann, an importer of clementines, was not individually affected by a decision of the German customs authorities to refuse a request to suspend customs duties on imports of mandarins and clementines. Plaumann was an importer of clementines; yet he was not individually affected by the measure because importing clementines was a commercial activity which may at any time be practised by any person, the Court held. See Case 25/62, Plaumann & Co. v Commission, EU:C:1963:17, p 107.

72 On the former, see Joined Cases C-622/16 P to C-624/16 P, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, EU:C:2018:873, para 29. On the latter, see Case C-274/12 P, Telefónica SA v European Commission, EU:C:2013:852, paras 47–8.

73 See here Joined Cases C-71/09 P, C-73/09 P and C-76/09 P, Comitato “Venezia vuole vivere” e.a. v. Commission, EU:C:2011:368, para 53.

74 Art 291(3) TFEU.

75 To be clear, the EU legislature cannot bypass the Comitology process altogether and set up comprehensive ad hoc control mechanisms for each of the unilateral trade instruments examined in this article. Art 291(3) TFEU provides that the EU legislature “shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.” The mandatory language of this Treaty provision suggests opting out of Comitology altogether is not constitutionally permissible. In this sense, see also Chamon (n 26) 145–55.

76 Point 30 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, OJ L 123, 12.5.2016, p 1–14.

77 Art 18(2) of the Export Control Regulation.

78 On the use of sunset clauses in the United States, see, e.g., Curtis A Bradley, “Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds” [2021] Journal of Legal Analysis 439, 463.

79 See here Adina Akbik, The European Parliament as an Accountability Forum: Overseeing the Economic and Monetary Union (Cambridge University Press 2022) 2.

80 In the United States, Congress can issue subpoenas compelling individuals to appear or to provide information. Noncompliance can lead to the individual being held in contempt of Congress, which is a felony. For an introduction to Congress’ subpoena powers, see Todd Garvey, “Congressional Subpoenas: Enforcing Executive Branch Compliance” (Congressional Research Service 2019) CRS Report R45653 <https://crsreports.congress.gov/product/pdf/R/R45653> accessed 25 September 2024.

81 Point 45 of Framework Agreement on relations between the European Parliament and the European Commission, OJ L 304, 20.11.2010, p 47–62.

82 Philipp Dann, “European Parliament and Executive Federalism: Approaching a Parliament in a Semi-Parliamentary Democracy” (2003) 9 European Law Journal 549, 556.

83 See in this sense already Case C-25/94, Commission v Council (‘FAO’), EU:C:1996:114. Such an agreement would not infringe on the Commission’s independence, which is protected by Art 17 TEU, since the Commission would consent to the interinstitutional agreement.

84 This is a long-standing demand by the Parliament. See, e.g., European Parliament resolution of 9 June 2022 on Parliament’s right of initiative (2020/2132(INI)), <https://www.europarl.europa.eu/doceo/document/TA-9-2022-0242_EN.html> accessed 24 July 2023.