Can Europe Make It?

TTIP transparency debated at Yale

Those worried by aspects of TTIP should be wary of reflexively rejecting a deal that seems bad at first glance, and should instead take up the harder but nobler task of fixing it. 

Fil Lekkas
31 May 2015

Over the last years, NSA spying revelations and anxieties over the “Pivot to Asia” have cast a new shadow over the transatlantic relationship. In response, US and EU policymakers are attempting to forge a comprehensive Transatlantic Trade and Investment Partnership (or TTIP), which promises to deepen trade and jumpstart the transatlantic economy. But to its seemingly rising chorus of opponents, TTIP is an attempt by the powers-that-be to impose a neoliberal agenda on Europe through the back door of opaque negotiations and shadowy private courts.

The participants of the European Students Conference (ESC) at Yale that took place in February 2015 took stock of the debate and came to their own conclusions, seeing TTIP as a unique opportunity to dramatically boost Europe’s economy while upholding Europe’s commitments to transparency and regulation. What follows is the first of two student presentations on their sub-theme’s findings: here, Fil Lekkas argues that while the degree of formal transparency is now both radical and sufficient, a truly effective TTIP debate requires stronger efforts from the European Commission to engage with the public and national constituencies.

ESC formal conclusions can be accessed at the website of European Horizons, the think tank founded at the conference, but the following text deepens and contextualizes the positions taken. For more arguments—on ISDS, transatlantic energy markets, and more—visit the conference homepage. The European Students Conference was financially supported by the EU through the Erasmus+ program.

Since it began negotiating the Transatlantic Trade and Investment Partnership (TTIP), the European Commission has weathered immense criticism over the alleged opacity with which it has conducted those talks. With nine rounds of negotiations now behind them, accusations of secrecy continue to sound from what seems like every corner. The Corporate Europe Observatory’s Pia Eberhardt, in an article published last week in, suggested that the "so-called transparency initiative for TTIP” is "nothing but hot air”, echoing criticisms heard within weeks of the start of negotiations.

But it seems to the attendees of the European Students Conference at Yale that these criticisms, probably valid at the beginning of the negotiating process, have long since been overtaken by events—to Europe’s collective credit. Under the leadership of new EU Commissioner for Trade Cecilia Malmström, the TTIP negotiation process has profoundly changed tone: in November 2014, she took the brave step of releasing to the public a slew of negotiation documents, including Europe’s negotiating positions on all issues under discussion.

This means that almost every document the EU has presented to its American counterparts in the negotiations has also been made public, a decision that is only infrequently acknowledged as entirely without precedent. And immense efforts have been made to make this content as accessible as possible on the European commission’s websites, with summaries and fact-sheets written in a language anyone conversant in English can understand—even as the public shows itself less interested in actually reading the documents than demanding they be available, with the documents pertaining to hygienic standards in food being downloaded at the paltry rate of 87 clicks per day in the two months following their release.

This leaves only one remaining category of documents unreleased: positions papers jointly drafted by the US and the EU in the course of the negotiations, known as the consolidated negotiating texts. The European Commission has secured access to these documents for members of the European Parliament and their national counterparts, giving them state-of-play insights into the negotiations and therefore allowing them to communicate reservations or enthusiasm about the terms of the agreement immediately to their negotiating representatives. Unilaterally releasing these texts to the public, while demanded by transparency advocates, is not a prerogative of either negotiating party, and so far has proved unacceptable to the American side. The European Ombudsman, Emily O’Reilly, has criticized the EU’s apparent willingness to rest their case without too much fuss: but she too seems to acknowledge that short of “interrogating” the US position, there’s not that much that the European Commission could do.

And even beyond the rhetoric of transparency, it seems unclear how tremendous the discourse benefits of releasing these joint texts over the position papers will be. While a draft final text experienced in the flesh could prompt a stronger political response than the EU position papers have, since any final text released in a year or so’s time that deviates too far from the position papers already released will be roundly castigated as an immense failure on the part of the European Commission and negotiating team—and those in the EP and elsewhere who already have access to them—releasing the joint texts is unlikely to be anywhere near as transformational to public debate as the currently released documents have been.

Transparency and democracy

And transformational the current documents have undoubtedly been. By dragging into the limelight issues that had been left undiscussed in past free trade negotiations, like Investor-State Dispute Settlement (ISDS) clauses, and reaffirming European commitments to precaution in regulation, they are sparking a vigorous debate about what sort of agreement Europe needs. More interestingly, this public debate has already had high-level political consequences: see the edits made to the European position paper on regulation of cosmetics, where an earlier call for mutual recognition of standards was reduced to "collaboration in scientific safety assessment methods.” The European Consumer Organization’s Director General Monique Goyens, quoted by EurActiv, attributes this edit to a European Commission which responded by “acknowledging and acting” on concerns brought by public interest organizations. This would categorically have been impossible had the Commission not opted for "access to documents and engagement with civil society."

ISDS has been the issue that has seen the most criticism—and generated the most responsiveness from the European Commission. In response to an online public consultation concluded in July 2014, in which over 150,000 people lodged (largely copy-pasted) concerns about ISDS, the Commission suspended negotiations on the chapters pertaining to investor protections with the stated objectives of finding a solution palatable to the offended parties in the interim. Cecilia Malmström’s recent suggestion that ISDS could be watered down or replaced by a more accountable international court shows that the European Commission, while not necessarily thrilled by the prospect of being monitored this closely by the public, is willing to play ball. It seems safe to conclude that the release of documents, accelerated by organizational power of social media, has clearing impacted on the negotiating process—and from there, that European democracy has a pulse.

Even a cynic has reasons to believe that the European Commission is taking these concerns seriously. If this Commission has shown itself to be more responsive than Commissions past, it’s probably in part due to lessons learnt from the sudden death in 2007 of the Anti-Counterfeiting Trade Agreement, or ACTA. Then, a negotiating process widely criticized as opaque generated a groundswell of opposition to the treaty and ultimately led to ACTA’s resounding defeat in the European Parliament. Since the negotiating team and its political minders know that a sufficiently harsh public reaction harnessed in the same manner would spell the end of years of their work, they have an interest in gauging what concessions are and aren’t politically palatable—and for that, reading the responses of MEPs, interest groups, and the public to the EU’s assumed positions is critical.

That the public will ultimately have the last word should certainly be a source of relief, but not of contentment. Yes, the directly elected European Parliament would be able to vote down the proposed treaty, and the Council, composed of the members of national cabinets, would also exercise a veto. But unfortunately these institutional safeguards alone aren’t entirely sufficient: European voters, few of them that make themselves heard every so many years, have only one vote with which to hold their MEP’s accountable on a variety of issues, and the disincentive of returning back to the negotiating table would make it difficult for MEPs to vote down even a suboptimal agreement.

And it is in this crucial aspect that ACTA and TTIP differ—while the best that an anti-counterfeiting treaty could have done for Europe was to better protect intellectual property and encourage cultural innovation, a free trade deal like TTIP could dramatically boost economic growth. Hence the importance of a vigorous debate before the text is presented—clear red lines drawn by the EP would inoculate Europe from a fait accompli.

But European democracy should not rest on the meager laurels of being able to reject a proposal. Real democracies give representatives and the public the ability to take control of and reform laws, and Cecilia Malmström’s about face on ISDS shows that this could be the case for TTIP.

Europe’s voters, especially in the south, are eager for any base point of growth they can squeeze out of a deal, though they too want it to be fair, safe, and sustainable. For their sakes those worried by aspects of TTIP should be wary of reflexively rejecting a deal that seems bad at first glance, and should instead take up the harder but nobler task of fixing it.

Serious, thorough journalism will be critical in making this a possibility, and so good on platforms like the Guardian and this publication here for bringing many of TTIP’s original offenses to the public’s attention. But in a world where thousands of people in Berlin, Brussels, and Madrid protested against TTIP in late April, maybe its time to nod approvingly in the direction of the Berlaymont, as awkwardly unpracticed at doing so as some might feel.

Encouragingly, at a debate hosted by the Guardian, a large fraction of Guardian readers who entered the debate as TTIP opponents indicated that they’d be open to supporting the treaty if ISDS were taken out. While its unclear if that solution is the best deal Europe could get, it is encouraging that a public engaged in an open debate and given real choices about what kind of agreement it wants could potentially be convinced of TTIP’s general benefits. In that spirit, if Habermas called the continent wide protests over the US’ decision to invade Iraq the “signal for the birth of a European public”, then maybe the rejection of ACTA was its teething period; and hopefully reforming TTIP will be its first steps.

The road ahead

Another reason to start focusing on the substance of what is being discussed is that we might be short on time. With tariffs having been eclipsed by barriers to market access as the single largest impediment to global trade, encouraging global trade by reducing those barriers while also maintaining the high level of consumer protection that Europeans expect demands a good amount of public scrutiny. Worryingly, this may be more scrutiny than the European Commission has budgeted time for. An aggressive timeline of a handful of years for the conclusion of negotiations on such a potentially high-impact topic seem overly optimistic; especially as the 2016 US presidential elections draw nearer and Obama has had to resort to name-calling to successfully push through trade-promotion authority for TTIP’s Asian cousin TPP, higher on the US priority list than even TTIP.

But most importantly, accepting a longer timeline would allow the debate to run deeper and wider, allowing the final text to better reflect the interests of the public. Alternatively, surgically excising the question of investor protections from TTIP’s mandate and shooting for a less comprehensive and correspondingly less controversial deal whose benefits can be felt right away, as proposed by the ECFR in a recent report, might be the right way to go—but in both cases, lets not be overhasty about making sure the public’s voice has been heard.

This is especially true if the trade agreement proposed has consequences for policy areas legally the prerogative of member states. Though trade is negotiated exclusively by the European Commission, especially broad and ambitious treaties sometimes need approval from national parliaments—and if nations aren’t closely involved in the negotiation process early enough, the odds of a single national veto derailing TTIP increase. Given that TTIP seems likely to be such a “mixed agreement”, our sub-theme proposes that national parliaments be involved to the same degree that the European Parliament is, with greater access to the reading room and more prominent roles in consultative meetings.

And though they’re surely mystified by the tenor and temperature of the public backlash, more needs to be done by the European Commission, notoriously inexperienced in the touchy-feely aspects of public diplomacy, to stimulate a healthy debate. Maybe throwing its employees into the ring would help: letting trade negotiators just zip around the Brussels and DC circuits adds to this feeling of faceless oppression, and having seen him engage with a roomful of European and American college students, I’m confident Ignacio Garcia-Bercero could deliver just fine on national television. With the furor over TTIP being what it is, a frequent obstacle to coverage—that networks can’t afford to let alternately saccharine and tepid European politicians eat up valuable airtime—shouldn’t be as intractable as its usually is.

But sadly, even if all this is done, the reality is that TTIP would rouse the suspicion of certain political constituencies no matter what degree of formal transparency the European Commission elects to uphold. See for example Green MEP Molly Scott Cato’s February op-ed in the Guardian, which railed against the degree of opacity without as much as acknowledging any of the transparency innovations mentioned above. That does an immense disservice to those members of the public who’d prefer that their representatives engage fairly and constructively. At least Scott Cato concedes that she’d always oppose a vision of “uniformity” and “order” constituted by TTIP, transparency or no transparency.

This matters: there are grounds on which to oppose TTIP that don’t needlessly inflame the rhetoric of those more sophisticated eurosceptics who slur the EU as a den of opacity and despotism.

In conclusion: works remains to be done on the transparency front, but—in a curious riff off Europe's theme of the last five years—credit needs to be given where credit is due. The debate now needs to slowly move away from grumbling about the degree of transparency, and turn to substantive issues, such as the challenge of common regulatory standards.

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