12 February 2015

TTIP's "cultural exception" may not be enough to safeguard culture & education

Helga Trüpel, Green MEP & TTIP Rapporteur discusses the opinion of the Committee for Culture and Education

Vice-Chair of the Commitee Culture and Education

After the "fresh start" proclaimed by the EU Commission, TTIP negotiations are in full swing again - with potentially dangerous repercussions for audio-visual media and educational services. 

Thanks to a wave of protests from authors, moviemakers and actors but also from the Greens in the European Parliament, audio-visual services have been excluded from the negotiation mandate and from the TTIP chapter on services. This was a big success but might just not be enough. The exception of audio-visual services does not apply to all areas of the agreement. TTIP could hence still pose severe risks to cultural diversity in Europe. The sensible net of regulations which ensures a fixed prize for books, state support for certain movie productions or the protections of minors when using media, is at stake.

As the rapporteur for the opinion of the Committee on Culture and Education I therefore suggest a general clause which excludes audio-visual services from the TTIP agreement in a broad manner and for all chapters of the treaty. In my opinion this is the only way to ensure a sustainable promotion and democratic regulation of the sector which is crucial to cultural diversity. The EU should maintain the flexibility to draft new legislation to react to the development of audio-visual services and the convergence of media and telecommunication in the digital environment. As it looks now, TTIP risks binding the hands of policy makers for the future.

Only with a broad exception we can live up to our commitments from the UNESCO convention on the protection and promotion of cultural diversity which clearly defines audio-visual services as being of an economic as well as a cultural nature. The American negotiators are said to be pushing hard for the future liberalisation of the sector: an aim that the EU Commission should disallow for the sake of cultural diversity. 

It is my second key objective that European states retain the possibility to promote and regulate the European education sector. I therefore suggest that all providers of educational services, which receive support from the state in any form, shall be excluded from the liberalisation measures of TTIP. Europe can be glad to have a large variety of educational service providers, which do contribute to our societies in a number of ways. We should hence ensure that they can continue to receive state support and that states can, at the same time, create binding rules to ensure the quality of teaching for both European and non-European providers.

Here you can find my proposal for the opinion in the Committee of Culture and Education. The opinion will be presented on the 26th of February and will be put to a vote on the 16th of April.

Read: DRAFT OPINION of the Committee on Culture and Education for the Committee on International Trade on recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) Rapporteur: Helga Trüpel

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Of Course

Its important to create carve outs for education and healthcare and water and housing and all essential services with these FTAS.

TTIP and probably TISA, (which is the services FTA, much more likely to apply to education, healthcare *services* etc. ) seems to me to comletely borrow its legal definitions of its scope and exceptions from the WTO's General Agreement on Trade in Services (or GATS)

(See - the so-called "mandate document")

an important fact seems to have been overlooked- it borrows on a body of GATS jurisprudence which has been extremely broad in its interpretation of what is required to be privatized under GATS. To GATS is where one must look. And the situation there is not at all encouraging.

For example, its clear that except under very narrow circumstances GATS's government services exception does not extend to education unless a very difficult to meet 2 part test is met.

This is from an essay entitled GATS and Public Service Systems: readable at - Please read it in context there.

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The GATS "governmental authority" exclusion

Article 1:3 of the agreement states:

"For the purposes of this Agreement…

(b) 'services' includes any service in any sector except services supplied in the exercise of governmental authority;

(c) 'a service supplied in the exercise of governmental authority' means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers." (emphases added)

The "governmental authority" exclusion is very narrow
This exclusion is far narrower than it may at first appear.

Firstly, in order for a service to be excluded, both criteria must apply. That is, in order for the exclusion to apply, a service must be supplied on a non-commercial basis and its delivery must not be in competition with another service supplier. Thus, the exclusion does not apply to services that are supplied on a non-commercial basis but which are supplied in competition with another service provider. Similarly, the exclusion does not apply to services that are supplied on a commercial basis even where these services are supplied in the absence of competition with any other service supplier. Hence, only a small sub-set of services -- those that are provided by completely non-commercial, absolute monopolies -- appear to be protected by this exclusion.

Secondly, the exclusion is narrow by virtue of the ordinary definition of its terms. The agreement does not define the phrases "on a commercial basis" and "in competition with one or more service suppliers". However, the ordinary definitions of these terms are broad, making the set of services that they describe very large, and the set of services that falls outside them -- and hence outside the scope of the agreement -- quite small.

"Commercial" is defined variously as: "Engaged in commerce; trading"5; "Of or pertaining to commerce or trade"6; "Of, engaged in, or concerned with, commerce"7; or "concerned with commerce"8 (emphases added).

The definition of "commerce" includes: "financial transactions, esp. the buying and selling of merchandise, on a large scale"9, "the exchange of goods"10 or "buying and selling together; trading; exchange of merchandise"11.

The definition of "trade" includes: "the business of distribution, selling and exchange"12, "buying and selling … buying and selling conducted between nations etc.; the exchange of goods between peoples"13 and "the buying and selling or exchange of commodities for profit; commerce, traffic, trading"14.

"Competition" is defined as: "Rivalry in the market, striving for custom between those who have the same commodities to dispose of"15; "the act or an instance of competing or contending with others (for supremacy, a position, a prize, etc.)."16

"Compete" is defined as: "to try to get what others also seek and which all cannot have, to compete for export markets".17

Most so-called public services -- which are normally supplied through a complex mixture of public and private suppliers, or which frequently include certain commercial aspects -- appear to fall, at least in part, under these broad definitions.

They would thus fall outside the protective exclusion.18"

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Also see:

GATS - Interpretation of Article I, Section 3 (b) and (c) of GATS: (TISA texts adopted- opening of negotiations document - seems to adopt a similat approach, not endorsement of "standstill" "ratchet" mechanisms etc.

Of Course

I am sorry, I made a spelling error - I meant to say "(TISA texts adopted- opening of negotiations document - seems to adopt a similar approach, *NOTE endorsement of "standstill" "ratchet" mechanisms etc.* ) In other words, caveat emptor. These pacts attempt to create a "fright to regulate" situation as has existed in the US for 20 years bc. of GATS, a situation which has created a cult of dishonesty among legislators where both parties are cooperating with one another to hide the broad implications of the committments in these treaties and are complicit therefore in lying about their scope. These trade deals turn legislators into dishonest criminals who must lie to the public and make impossible promises to get elected, as in reality they are hamstrung by the trade deals, a fact which they cannot reveal to the public. So in the US we get abortive "state efforts for single payer" that could of course, never lead to single payer- unless it was not actually single payer. Here is another example of grossly misleading statements apparently made to conceal the sorry state of affairs - the elimination of an important healthcare policy option.

"Reid says Obamacare just a step toward eventual single-payer system":

Europe should not go down the path the US has gone down unless you want to lose any hope at having real democracy and substitute a sort of faux corporate-owned fake democracy in its stead.

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