The civil society protests against EU free trade agreements
(FTAS) and investment arbitration reflect the failure of EU institutions to
take “decisions as openly as possible and as closely as possible to the
citizen” (Article 1 TEU) and to protect the rights of citizens also in external
market regulations (Articles 3, 21 TEU). The less EU institutions comply with
the legal requirements (e.g. in Articles 2, 9–12 TEU) of protecting
constitutional, representative, participatory and deliberate democracy also in
external market regulations, the less parliamentary approval of secretly
negotiated FTAS guarantees democratic legitimacy and consistency of FTAS with
EU constitutional law. Fundamental rights limit all EU governance powers,
including trade and investment policy powers of the EU. The disregard for
fundamental rights and judicial remedies of citizens in FTAS concluded by the
EU with third countries is neither necessary nor justifiable in terms of
Article 52 of the EU Charter of Fundamental Rights. Transatlantic FTAS on
multilevel market regulation and protection of public goods should be designed
as ‘democratic law’, which citizens are entitled to invoke and enforce in
domestic jurisdictions as integral parts of EU law.