TTIP confidentiality for the sake of the success

It took a bit to understand that the demystification and reduction of worries on the TTIP passed through a series of initiatives well-structured and aimed to allow a larger audience having access to the subjects being negotiated. Yet, the transparency initiative envisages keeping some documents as restricted and the explanatory lines dropped by Commissioner Malmström try to give ground to this decision. Nevertheless, between the initiatives promoted by the Commission and INTA MEPs’ suggestions, the knotty ISDS issue still pops up to give headache to TTIP negotiators.

New Year, new documents on the TTIP declassified under the initiatives kicked off on 25^th November by Commissioner in office for Trade Cecilia Malmström.

The initiative has been perceived as a first step in the right direction, by both group campaigning pro or against the Treaty, while still falling short in fulfilling the aim of several groups in the European Parliament, namely full transparency. More transparent procedures for more transparent Institutions, reckoned as intervenient measures to tackle the ramping wave of Eurosceptism and disaffection of EU citizens towards Brussels’ Eurobubble. Furthermore, the transparency initiative blesses the publication and diffusion of documents to a broader number of MPEs, besides the launch of a readers’ guide to ease the access of the wider public to the declassified documents.

The word “access” here means not only the opportunity to handle materially the documents and having the chance to get through by reading them. More than this, the term gets to put them in a more intelligible form, for those having less than a smattering of legal and/or economic knowledge.

It is the first time the Commission is publishing documents concerning legal framework and inner factors involved in the process while negotiating a commercial agreement.

In her latest public speech, Commissioner Malmström underlined how the objectives fixed when she first stepped into the Berlaymont building are now nailed, or at least partially met.

On January the 7^th, the Commission made available online dozen of factsheets related to the on-going TTIP-negotiations on public procurement, rules of origins (ROOs), engineering products, medical devices, chemicals, intellectual property rights (IPRs), services, government-to-government dispute settlement (GGDS) instrument, sanitary and phytosanitary measures, trade on goods and customs duties, labour and environmental sustainable development norms, energy and raw materials, textiles, regulatory cooperation, plant and animals protection and food health, vehicles and automotive sector, cosmetics and pharmaceutical, Small and Medium enterprises (SMEs).

Seen the abovementioned long-, although still incomplete, list of items under negotiation the dint is that the treaty is indeed foreseeably to influence most aspects of consumers’ everyday life, whether it comes legally true. Anyway, the date for the signature seems to be postponed further and further, day by day provided with the technicalities and criticism coupling with the negotiations.

Ideally, negotiators indicate the end of the year as the conclusion of the negotiations and the craved signature-day, or under a more realistic lens prior of the end of Obama’s presidency. But before even thinking about how close we are to conclusion of negotiations, the Commission must question itself on how abide by the EU transparency and practices including its citizens’ takes.

Demystify, Clarify, Show, Explain before signing, sealing and delivering the TTIP text

This haiku-form manifesto may symbolize the four actions that Commissioner Malmström has envisioned to accomplish the crusade against the lack of transparency in the EU practices initiated by civil society movements both by Ms O’Reilly, EU Ombudsman in office. For this purpose, the Commission gauges that the progressive declassification of the documents would give evidence to MEPs and civil society whilst gaining political approval. The whole process involves four key measures that on the medium-run would make available the documents in the very wake of the negotiation rounds for the Council, Member States and a wider number of MEPs than the sole 28 sitting in the International Trade (INTA) committee and outside the reading rooms of the EP building. Apparently the key word of the initiative is more: more documents, more availability and published on a more regular basis for a more aware and acknowledged public.

Obviously, consultations and negotiations will not be held in public but of course not secret and still access to a number of documents will be restricted for the sake of achieving negotiations, tactical reasons against third parts and to preserve from external market spill-overs’ factors to interfere with the current talks. “When entering into a game, no-one starts by revealing his entire strategy to his counterpart from the outset: this is also the case for the EU” (1).

Transparency is not merely about publishing; documents were online since the very beginning thanks to the leak initiative carried out by Green MEPs. It must be evident how stakeholders heard in consultation prior to opening of new rounds are selected. It is required to know what is involved and what not in the TTIP negotiations, wrapping up a clear list of the issues at stake. It must be acknowledgeable why the diffusion of documents is limited to some categories and it is so difficult to overcome the practice of limiting the diffusion to reading rooms in the EP. It is required to notice if these standards are going to be set and steadily being applicable to future negotiations and setting new rules, as the EU should do where exercising its normative power. It is utmost important to explain and deconstruct arguments and myths, if any, so to let people understand and expose concerns and appraisals, if any.

Although, it takes two to tango, the Commission, indeed, can publish only its papers and proposals, while falling short in swaying the US counterpart to do the same. On the same page, Ombudsman O’Reilly warmly invited European negotiators not to fall victims of the US resistance to publish consolidate EU-US negotiating texts and to progress on its walk towards transparency.

Can you try to explain the TTIP to the man in the street?

As mentioned before, the availability of the documents tends to be a fake-aim, a sort of cover, if the negotiating texts are not clarified and explained to “mere” citizens. The utmost pressure of targeting EU citizens’ comprehension follows the growing buzz diffusely showed by the civil society and the petitioners widely subscribing campaigns and submitting questions to the European Commission.

Commenting the attention catalysed by the TTIP amidst the wider public, Commissioner Malmström said of finding herself astonished after the number of “men in street”, not even acquainted with legal or economic notions, though willing to understand the real bulk at stake.

Granting high levels of transparency and integrity, the Commission automatically will improve trust and confidence in the way the EU works in negotiating and “an agreement that responds to European consumers’ needs and concerns”, as Malmström had to say in front of the EP in November. Furthermore, the EU refers to the transparency booklet when negotiating in trade, prevising and encouraging democratic scrutiny and public involvement at all stages of talks.

Currently, citizens’ comprehension is backed also by a news document issued by the Commission, namely a Readers’ guide structured around three main pillars of the Treaty: market access, regulatory co-operation, trade rules (2). In the ultimate attempt to square the circle of a balanced formula blending confidentiality and transparency in the negotiations, the decision to put out a “TTIP 101 for dummies” is doubtlessly a good move to clinch together EU engaged public opinion and the Institutions. After all, good administrations must be accessible to vast public and carry out their tasks plainly and clearly, in a single word: transparently.

Besides, registering these bold steps towards transparency and positive reactions of MEPs assigned to the committee INTA, primarily by its chair Bernd Lange (S&D) and one of the most active appointed member, Marietje Schaake (ALDE). The first week of working session in 2015 has seen the relentless drafting activity of the INTA committee in view of preparing the draft report on Parliament’s recommendations on TTIP to be delivered to EU’s negotiators (3).

Looking at the point 4.3.2 of the INTA working paper on the investment liberalization and protection, the “chicken” comes home to roost. The ISDS, the Investor-State dispute settlement instrument, still turns out being the most controversial issue in the debate, more than worries related to consumers’ health and introduction of allegedly toxic goods on European high-standards’ market. Being thorny and entangled to be put in plain words, the ISDS issue has not yet been enclosed in the explanatory note for readers, either it is said to be included in the final version of the TTIP. Actually the arbitration to settle potential disputes between investors and State is still at its embryonic form as it magnetized most of the critics, till being considered a redundant clause in the treaty being the Transatlantic partners provided with high-level reliable judicial system.

Given that democratic governments respect rights of their citizens and companies, an arbitration investors-government is needed whereas the respect of these rights is not openly or appropriately envisioned for foreigner investors likewise. Being the latter case-scenario far from depicting the EU-US situation, chances are that the enhancement of the investment protection clause in the TTIP would play the balancing role of regulating and protecting investors’ interests while enabling governments to rule and pursue their public policy objectives. The proposed EU approach to the ISDS has been included also in a public consultation launched by the Commission in 2014 (4). In its report following the conclusion of the consultation, the Commission has registered a widespread opposition to the mechanism coupling with the INTA MEPs recommendation to wipe out the ISDS issue from the TTIP, for the sake of success and transparency of course.

(Anita Nappo)

Pour en savoir plus

European Commission factsheet “Transparency in EU Trade negotiations” trade.ec.europa.eu/doclib/docs/2013/june/tradoc_151381.pdf
TTIP negotiating texts – A reader’s guide

www.trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153034.pdf

EP Committee INTA working document preparing the draft report on Parliament’s recommendations to the Commission on the negotiations for the TTIP

www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-546.593&format=PDF&language=EN&secondRef=01