Zur Beteiligung des Bundestages an gemischten völkerrechtlichen Abkommen. Internationale Freihandelsabkommen als Herausforderung des deutschen Europa- und Außenverfassungsrechts

The so-called »mixed« treaties challenge both EU Law and national Constitutional Law. The conclusion of such treaties is required because of the distribution of competences between the EU and the Member States. If and how the German Parliament (Bundestag) needs to participate when a mixed treaty is concluded depends on Constitutional Law, EU Law and Public International Law. The decisive provisions in German Constitutional Law governing the participation of the German Parliament in matters of mixed treaties are Art. 59 para 2 sentence 1 of the German Constitution, which under certain conditions provides for the participation of the German Bundestag when international treaties are concluded, as also Art. 23 of the German Constitution, which includes legal requirements concerning EU matters. Finally, also Art. 24 para 1 of the German Constitution needs to be considered, which refers to the transfer of sovereign rights to intergovernmental institutions. As a preliminary matter it has to be decided whether a treaty according to its content is only covered by the EU's competences or whether also the competences of the Member States are affected with the effect that their participation is necessary when concluding the mixed treaty. Concerning the EU's competences, especially Art. 207 TFEU needs to be observed, which defines the common trade policy as an exclusive EU competence, but according to the prevailing view does not include either portfolio investments or requirements for investment protection by arbitration. No judicial decision is yet available on the question if in the case of a minor affection of the Member States' competences according to the main focus of the treaty an »EU-only« treaty exists or if still the existence of a mixed treaty is to be assumed. If the EU is the sole contracting party of the third state, participation of the German Parliament takes place according to Art. 23 para 2 of the German Constitution. Concerning parts of a treaty which affect the Member States' competences, judgments of the German Constitutional Courts support the conclusion that participation should follow the procedures concerning international treaties, laid down in Art. 59 para 2 sentence 1 of the German Constitution. In this connection, a discussion concerning the interpretation of the term »political treaties« applied in Art. 59 para 2 sentence 1 of the German Constitution should be decided in favor of a narrow approach. This would effect that international agreements on free trade would not be covered by the term »political treaties«, but still by the other variation of Art. 59 para 2 sentence 1 of the German Constitution referring to treaties which affect the area of responsibility of the German legislator. It has not yet been decided in which extent the German government is obliged to inform the German Parliament about subject and development of ongoing contract negotiations. In any case, it is appropriate if within the application of Art. 59 para 2 sentence 1 of the German Constitution in the context of mixed treaties such information obligations are less extensive than in the context of European integration, where Art. 23 para 2 of the German Constitution imposes far-reaching information requirements on the German government. Possibly Art. 24 para 1 of the German Constitution, which also requires the participation of the German Parliament, can be applied to free trade agreements which provide for rules concerning arbitration. The application of Art. 24 para 1 of the German Constitution is likely in the case the investment protection agreement includes rules which guarantee the direct enforcement of titles in Germany. But also in this scenario, Art. 24 para 1 of the German Constitution according to its purpose and the reference to intergovernmental institutions only relegates to courts of arbitration which are permanently established. Therefore, a pure arbitration clause will not trigger the application of Art. 24