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10 July 2014
Lack of transparency in TTIP - a case for the ECJ?
TTIP is far from the traditional trade agreements negotiated in the past. In essence, it is not so much about trade but about reaching a political agreement on ‘regulatory cooperation’ in the form of a binding bilateral treaty.
But notwithstanding this, TTIP is classified as a trade policy measure of the EU. Therefore it is subject to limitations regarding the openness of the negotiations and access to negotiation documents. The argument given by the Commission is that you cannot let your opponent see your cards. This might have been the case in horse-sale deals of 18th century mercantilism, but is it the right approach for an agreement to establish far-reaching political cooperation? Surely not.
And let us also be honest - it is highly unlikely that the EU or the US negotiators do not know their respective positions. In modern NSA times very little is truly secret. Hence, it is rather that the limited openness of the TTIP negotiations serve to keep in the dark those not present at the negotiation table.
Another argument for such secrecy is that the Commission has been charged by the EU Treaties to negotiate on behalf of the Union. They believe therefore, that they should be able to do this in peace. In the division of functions, the European Parliament and the Council as the two legislators will have the chance at the end of the negotiations to scrutinise the results and - if they are not satisfied - to reject ratification.
This argument is valid. However, the Lisbon Treaty Article 218 (TFEU) which gives the Commission the power to negotiate international trade agreements, also poses conditions for their conduction. It says: The European Parliament shall be immediately and fully informed at all stages of the procedure. (Art. 218.10 TFEU)
But are your elected political representatives in the European Parliament “immediately and fully” informed? The Commission says that it is making all efforts to inform the Parliament and also the public at large. Indeed, the Commission has had unprecedented interest in this trade deal, and has conducted itself in a much more transparent manner than during previous negotiations. But the real test of this openness will come this month.
To date, Member State representatives, along with select MEPs have retained access to EU negotiation texts. This access, although limited - and denied to the broader public - has allowed for some restricted oversight to Commission objectives in TTIP. But now as both negotiating parties begin work on joint consolidated chapters, access is set to become even more restricted, making it virtually impossible for the European Parliament to be “fully informed”.
Reading Rooms ‘unacceptable’
The arrangement, proposed by the US and agreed by the Commission, will involve setting up ‘Reading Rooms’ with restricted access to the consolidated EU-US texts which contain the positions of the US and the EU on particular topics in the form of a legally binding international treaty.
This arrangement will have immediate effect from the 6th round of talks, starting on 14 July. One such Reading Room will be established in the Commission building and another in the European Parliament, in Brussels. The Coordinators of the political groups, the chair/vice-chairs of the International Trade Committee, and some selected representatives of other involved Committees will be the only MEPs granted access to the Reading Room. No notes can be taken and no electronic devices are allowed. Readers are not entitled to share information with third persons.
Representatives of the Member States are to receive similar treatment. They might have access to additional Reading Rooms set up in US embassies in European capitals, based on rules that are yet to be determined. Understandably, 17 EU Member States have repeatedly complained to the Commission at the Council's Trade Policy Committee meetings about this arrangement, namely France, Sweden, Romania, The Czech Republic, Austria, Finland, Italy, The Netherlands, Portugal, Belgium, Poland, Slovakia, Slovenia, Lithuania, Croatia, Austria and Hungary. Recently, many Member States representatives of the Committee went beyond complaining and clearly stated that the reading room agreement is "not a solution" to the question of transparency.
Such restrictions prohibit governments and MEPs from initiating a detailed analysis of the agreement with their advisors and colleagues, as sharing information with third parties is strictly forbidden. And yet, these consolidated negotiating texts are the heart of the negotiations.
TTIP will inevitably impact law and rule-making processes. Political oversight is therefore an essential requirement for this undertaking. If we subscribe to the view that TTIP is not about trade but represents a political agreement, then there are no grounds for the secrecy that has shrouded these talks and eroded public confidence. Given what is at stake, people and their representatives need more information at this time, not less.
Therefore the Commission should reject the transparency arrangement tabled by the US side and stop further negotiations as long as it is not clear whether the arrangement respects the requirements of Article 218.10 of the Treaty on the Functioning of the European Union.
Impact on the US
Furthermore the US Congress is also troubled by the lack of transparency in TTIP and its sister agreement, the Trans-Pacific Partnership (TPP). Efforts by the White House to obtain a "Trade Promotion Authority” or “Fast-track” under the Camp-Baucus Bill have so far failed, having received no support in Congress. Fast-track would prevent treaties like TTIP from being subject to congressional committee mark-up and amendments, thus giving the President the authority to conclude swiftly trade agreements. The Camp-Baucus bill was defeated in part because it did not provide any meaningful new transparency over and above the last TPA bill from 2002.
More transparency in Europe could mean that a new TPA bill or an amended Camp-Baucus bill could apply this standard. This would increase the chance that the TPA bill passes Congress. It would ensure that public representatives on both sides of the Atlantic could understand and absorb this complex and vast negotiation process.
A case for the European Court of Justice?
Last week's ruling by the ECJ (Judgement (First Chamber) of 3 July 2014 in Case C-350/12, Council of the European Union v Sophie in't Veld) that legal opinions of the Council relating to international agreements should not automatically be exempt from publication and that the Council "must first explain how disclosure could specifically and actually damage the [public] interest" is an important development. It will help to shed some light on previously undisclosed legal opinions provided for the Council, including those relating to TTIP. It could in turn also affect the way opinions of the Parliament and the Commission's own legal services are handled in the future.
This news comes only one week after another and potentially even more important ECJ ruling, the so-called Mauritius case – in which the Court boldly confirms the importance of timely and full information for the Parliament in the matter of international treaties, such as TTIP (Judgement (Grand Chamber) of 24 June 2014 in Case C‑658/11 European Parliament v Council, paragraph 86: " If the Parliament is not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, including that preceding the conclusion of the agreement, it is not in a position to exercise the right of scrutiny which the Treaties have conferred on it") These rulings are important signals in support of more transparency in the TTIP negotiations.
As members of the European Parliament, we are directly accountable to European citizens, whose confidence in Europe relies on our ability to explain proceedings and assess what the impact might be. Denying MEPs this is preventing them from doing their jobs. And if EU and US negotiators continue along this line, we believe TTIP will be theirs to lose.
It is within the rights of the European Parliament to ask the European Court of Justice to assess the compatibility of restricted access to TTIP documents and being ‘immediately and fully informed at all stages of the procedure’.