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Part I
Analysing the EU’s behaviour in complex Association Agreement negotiations
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1Introduction
The EU in increasingly complex international negotiations
Complex international negotiations as a challenge for the EU
The Common Commercial Policy (CCP) is one of the European Union’s (EU) oldest policy areas with an external remit. A core part of this policy today consists in the EU’s capacity to conclude Free Trade Agreements (FTAs) with partners in the rest of the world. In this policy area, the EU’s member states have relinquished their capacity for independent policy-making and instead transferred these powers to the EU and its institutions following specific decision-making arrangements.
In the case of so-called pure FTAs, which touch only on the EU’s exclusive competencies in the realm of trade policy-making, these decision-making mechanisms are relatively simple and allow for agreements to be ratified by majoritarian decision-making in the European Parliament (EP) and the Council of the European Union1 only. However, in line with the EU’s increasing role in other areas of foreign policy-making, FTAs are only one kind of international agreements that the EU can conclude with external partners. Increasingly, attempts to conclude so-called Association Agreements (AAs) which combine negotiations on trade relations with external partners with other elements of an external relationship, such as political ties or development cooperation, have replaced negotiations of traditional FTAs.
Much like negotiations for FTAs, attempts to conclude Association Agreements are not always successful. This may be down to fundamentally differing views of both sides in such negotiations. However, in some of the EU’s Association Agreement negotiations, ultimately an international agreement is still found, albeit in the format of an FTA. Given that FTAs touch on fewer of the EU’s policy areas with an external remit, negotiations in this area tend to be less complex than those for Association Agreements. In consequence, the process underpinning the latter can therefore be considered as complex EU negotiations. In such negotiations, the EU’s policy aims in several of its external policy areas have to be considered and ultimately form part of the EU’s negotiation stance.
Not only do such negotiations make for a more complex decision-making process in the EU—as Association Agreements touch not only on issues where the EU has been given exclusive competencies by the member states—but also the discussion of aspects within the remit of distinct EU policy areas makes an internal coordination of the EU’s negotiation priorities a key challenge for the successful conclusion of any such negotiations. This is due to the fact that different aspects of the EU’s foreign policy system have distinct origins and involve differing institutional actors and decision-making procedures, ultimately making the EU’s external relations system a “hybrid” (Smith, 2012), though one in which economic concerns still dominate other aspects of its external relations (Smith, 2018).
While traditional EU trade negotiations have long been studied by scholars and are relatively well-understood (see, for instance, Conceição, 2010; Dür and Zimmermann, 2007; Gastinger, 2016; Woolcock, 2012, 2014; Young and Peterson, 2006), this book concerns itself with the challenge that the increasingly complex nature of the EU’s international negotiations poses for its underlying institutional set-up as complex negotiations ultimately involve distinct institutions and follow differing decision-making logics depending on the policy areas involved. While the focus of the analysis is on the challenge posed by the legal instrument of EU Association Agreements, the book also considers the wider context of complex EU negotiations where a more traditional FTA may be negotiated alongside separate other types of political agreements with third parties. The book’s aim, in short, therefore is to explore how the dynamics of external treaty negotiations involving multiple distinct policy areas at once are shaped by the set-up of the EU’s internal decision-making and policy coordination system.
Determinants of the EU’s behaviour in complex negotiations
The challenge of complex negotiations such as for EU Association Agreements is ultimately down to the fact that what today constitutes the EU’s behaviour towards third actors, or what can be considered the sum of its external activities forms part of an overall European Union Foreign Policy (EUFP). This cannot be regarded exclusively in terms of individual activities delineated by specific boundaries of individual policy areas. Instead, when exploring the EU’s behaviour in complex EU negotiations, the unity of the EU’s activities towards third actors needs to be seen as a given, as EUFP is ultimately
that body of declarations, decisions, and actions, that are made by the use of all the instruments that the EC/EU has at its disposal, that are decided at the EC/EU level, and conducted in its name toward a country or an area outside its borders.
(Bicchi, 2007: 2)
This is similar to other considerations of the existence of a wider “European foreign policy system” (Smith, 2003, 2008; White, 1999), which similarly caution that the EU’s activities towards third actors go beyond its narrow Common Foreign and Security Policy (CFSP) and include many aspects of its policy-making.
Association Agreements are a manifestation of this EUFP, as they contain provisions pertaining not only to the EU’s CFSP, but also to a multitude of other policy areas, and the CCP in particular. This makes them a yardstick for the EU’s capacity to link considerations relating to its different policy areas with an external remit and the varying underlying decision-making mechanisms. Yet, in many instances, a consideration of an ultimate outcome of such negotiations sees this once more reduced to the format of a traditional FTA and thereby limited to an individual area of the external activity. The dynamics of the actual negotiations with the negotiation partners aside, this points to problems related to the EU’s capacity to achieve this goal. Ultimately, this book therefore aims to answer the question as to how the EU’s behaviour in complex negotiations is shaped by its capacity to (successfully) link different of its policy areas together in the process for such negotiations. This, in turn, requires a consideration of decision-making and coordination mechanisms in the area of its external relations.
After all, this “administrative Holy Grail of co-ordination and ‘horizontality’,” i.e. the ability to link different policy outputs, “is a perennial quest for the practitioners of government” (Peters, 1998: 295), and this has been no different in the case of the European Union’s external relations. Whereas problems of (external) policy coordination are not absent from traditional state-based policy-making, concerns over the coherence of the EU’s policy outputs towards third actors have been voiced for many of the EU’s activities in the realm of its external relations (see, for instance, Furness and Gänzle, 2017; Portela and Orbie, 2014; Verdonck, 2015).
These observations occur despite repeated attempts to increase the EU’s capacity to generate policy outputs which are coordinated between external policy areas, as “each progress towards enhanced coherence was paradoxically increasing internal complexity” (Telò, 2013: 27). This is ultimately due to the fact that the typical response to a lack of external policy coherence due to failures in policy coordination mechanisms has been to reorganize the functioning of the EU’s foreign policy bureaucracy in an attempt to foster coordination. This was achieved through treaty changes, portfolio and organizational reforms, or the invention of new roles such as that of the EU’s High Representative for its Common Foreign and Security Policy (HRVP). This will make it necessary to consider which broad factors internal to the set-up of the EU’s foreign policy bureaucracy affect its capacity to produce coherent foreign policy outputs.
It is here that a consideration of analytical tools developed for the study of the foreign policy of states, namely Foreign Policy Analysis (FPA), can help inform the study of the external relations of the EU, which increasingly resemble those of states in nature, scope, and ambition. Consequently, this book seeks to adapt and apply this framework to the study of the EU’s foreign policy with all its peculiarities. In exploring the challenge of complex EU negotiations, it therefore offers a generalizable analytical model to study complex EU international negotiations based on an adaptation of FPA literature.
Latin America as a test case for complex EU negotiations
While the analytical model to understand the internal dynamics of complex EU negotiations developed in this book is of a general nature, its utility is explored and tested in detail primarily through an analysis of the EU’s negotiations for Association Agreements with regional organizations in the Latin American (LA) region over time. In doing so, both the utility of the theoretical model itself and its consideration of institutional changes can be outlined. In particular, this allows to point to decision-making complexity and the associated duration of complex Association Agreement negotiations as an important negotiation dynamic in and of itself. This is followed by a brief analysis of other recent EU negotiations so as to demonstrate the general utility of the model.
As one of the largest trading blocs in the world, the EU has concluded a large number of FTAs and other kinds of agreements with both third countries and regional organizations. Simultaneously, it has concluded various kinds of political and cooperation agreements, making it a particularly active player in international agreement negotiations. While Association Agreements represent a more recent addition to the toolbox of international EU negotiations, the EU has nonetheless also concluded or attempted to negotiate a large number of such types of agreements up to this date, including agreements with countries such as Ukraine or Georgia. Even where EU negotiations are ultimately not legally concluded as Association Agreements, the EU may negotiate in parallel on separate but interlinked FTAs and political agreements, as has been the case in the EU’s negotiations with Japan. This means that ultimately a variety of negotiations could have been chosen to explore the utility of this book’s analytical framework empirically.
Nonetheless, most of these negotiations are embedded in a particular economic or political context which might involve the EU’s concerns in a wide array of policy areas. Considering negotiations with Ukraine, for instance, issues such as security or migration become important factors in addition to more traditional trade, political and development considerations. While a wide array of EU policy areas also form part of its negotiations with Japan, the latter country’s role as a key global economy makes the trade aspect of such negotiations even more crucial than would be the case elsewhere.
A deliberate choice was therefore made for the empirical analysis in this book to focus on complex EU negotiations in the Latin American context. This is a setting where a more limited set of EU policy areas would be involved, and the region’s relatively low economic salience should allow to explore EU policy coordination underpinning these negotiations in a context where concerns related to a single policy area are not too dominant from the outset.
Furthermore, over a little more than twenty years, the EU has ultimately attempted to negotiate Association Agreements with all countries and regional organizations in the region, offering the possibility to analyse a wide array of negotiation processes. These are furthermore all linked by an underlying dynamic which saw the EU invest considerable efforts in improving its ties to this region overall, and to utilize the novel model of Association Agreements, in particular (Dominguez, 2015: 172) in what amounted at first to the EU’s application of a “one-size fits all approach” (Börzel and Risse, 2009: 10) to actors in the region. Therefore, unlike for most other individual EU negotiations, the Latin American context also allows to study how individual negotiation processes have interacted with one another over time.
Table 1.1 provides an overview over the relevant negotiations for Association Agreement negotiations which are covered in the main empirical section in this book. These negotiations are in addition to ties that the EU has developed to the entirety of the region in the guise of regular EU–Latin American summits which have taken place since 1999. Today, this is structured on the Latin American side around the Community of Latin American and Caribbean States (CELAC) which regroups all 33 Latin American and Caribbean states.
Considering the specific complex EU negotiations at hand, it is of note that Mexico and Cuba aside, all negotiations listed above began within an interregional setting and were grouped as parallel processes in different waves of negotiations (as marked by the horizontal dividing lines). While the former is one of the most important Latin American economies, it nonetheless differs from the remainder of the region in that it is integrated with North America through the North American Free Trade Agreement (NAFTA)2 and has until recently not been a member of any of Latin America’s substantive subregional integration mechanisms. In contrast, Cuba’s distinct political history as a communist country meant that the country has not joined either of the above regional integration mechanisms. The agreement also differs in nature as it does not contain an FTA and has been termed as a Political Dialogue and Cooperation Agreement (PDCA).
When negotiations began for an Associa...
