Dr.Elaine Fahey, Senior
Lecturer, The City Law School, City University London
The script
The EU and US have
now completed 6 rounds of negotiations on the Transatlantic Trade and Investment
Agreement (TTIP),
the trade agreement under negotiation between the EU and US to cut trade
barriers and ‘behind the borders’ barriers (technical regulations, standards,
approvals) in a wide variety of sectors. It is touted as having the potential
to become the global trade standard. Already, the epitaph is alleged to have
been written on the Agreement. Yet while this misses the mark as to the theatre
of global rule-making, on the other hand, skepticism is not unwarranted. It has
at times appeared as an extraordinary experiment in rule-making.[1]
TTIP harbours ambitions to grow as a
living regulatory entity. It has become rife with controversy, for its secrecy,
for its possible inclusion of the Investor Settlement Dispute Mechanism (ISDM)
and its impact on EU regulatory standards. Some have even tried to stop the
negotiations using EU law itself, in the form of a failed
European Citizens Initiative.
The history of
transatlantic relations is littered with many failed attempts to integrate EU
and US legal order through mutual recognition, even in very limited fields. TTIP
had been poised to shake up this dynamic. It has become an exercise in ‘really
responsive rule-making’. However, many questions remain about international
negotiations and the standard of what is
and should be ‘really responsive EU rule-making’:- I reflect on its script,
production process and the cast of actors.
The production process
Most EU-US
rule-making processes in the past has been conducted firmly behind closed doors,
in inscrutable so-called ‘Dialogues’, in a range of fields that many will never
have heard of. They traditionally privileged industry. The TTIP negotiations have marked an enormous shift in EU-US
rule-making.
The TTIP
negotiations have been ostensibly
very open as a process. There is a lively EU TTIP twitter account (@EU_TTIP),
RSS feeds, video-streamed meetings, broad public consultations and prolific
document dissemination- more ‘quantitatively’ than its harshest critics might care
to admit. In fact, the EU often has appeared as a transparency ‘manna’ in
contrast to the tight-fisted US provision of information, even tweeting about
its own transparency or pictures of public consultations and meetings. However,
the TTIP negotiation mandate and draft text have long been leaked alongside the
official channels of information, posted in reputable German broadsheets like Die Zeit, as well as dedicated leaking
forums: http://eu-secretdeals.info/ttip/).
This leaking has threatened to take the
wind out of EU openness sails.
The Ombudsman late
into the negotiations recently raised questions as to the true place of
openness in the negotiations and launched a public
consultation. Her actions appear inadequately searching, and even late in
the game. A range of key CJEU decisions on transparency in 2014 (in’t Veld, Mastercard etc; see the previous blog posts on those cases here and here) have not done enough
to dent the exception surrounding international relations as regards access to
information. In fact, the leaking of the EU-Canada free trade agreement (CETA) in
August this year by the German broadcaster ARD demonstrates the truly dented
credibility of the state of openness, international negotiations and the EU.
The cast of actors
The response by
the Commission to steep and sharp public scrutiny of TTIP have been to set up
more civil society dialogue engagement points (eg civil society advisory
bodies) and more floods of consultations.
These processes have delivered only partially-scrutable results. For example, it
received nearly 150,000 for the ISDM, over half which will we never know about.
The involvement of civil society in the TTIP negotiations has arguably become quite
unwieldy.
The responses of the would-be
incumbent trade Commissioner Malmstrom to the ISDM saga have provoked scorn for
her breath-taking flip-flopping on its inclusion or exclusion from TTIP. The ‘flexibility’
about the normative agenda through ‘really responsive rule-making’ is a serious
concern.
There is still
much scope for more truly responsive rule-making, for example, a more vibrant institutional
dialogue and for parliamentary participation, at both national and EU level. The
powers of the European Parliament to approve any agreement reached have been
raised as both a shield and a sword to any would-be critics of its credentials
as a rule-making project. Many explore its potential within a living regulatory
entity.[2]
However, the vastness of the rule-making exercise may warrant a pause for
thought on this. For the newly elected Parliament to make an impact on the negotiations,
it must surmount a significant information gap and grasp the mantle of data.
The place of data transfer within TTIP has had endless twists and turns- first
the NSA affair, then the Google decision, then the decision by Microsoft to
shift cloud computing and comply with EU law. Yet it risks being swallowed up
within the broad swathe of TTIP. The TTIP negotiators face the question of how
to be really responsive to this- and whether the European Parliament and
Congress- neither a homogenous entity- will accept it all.
A battle is often
bitter because the stakes are so small. EU-US trade relations have never been
more liberalized or responsive to each other. It colours the context of what
the stakes actually are. How ‘really responsive’ the negotiations can and
should be has some legal and political distance to travel.
Barnard &
Peers: chapter 3, chapter 24
[1]See E. Fahey & M. Bartl ‘A Postnational Marketplace:
Negotiating the Transatlantic Trade and Investment Partnership (TTIP)’ in E.
Fahey & D. Curtin (Eds.), A Transatlantic
Community of Law: Legal Perspectives on the Relationship between the EU and US
legal orders (Cambridge: Cambridge University Press, 2014).
[2] Parker,
Richard W. and Alemanno, Alberto, Towards Effective Regulatory Cooperation
Under TTIP: A Comparative Overview of the EU and US Legislative and Regulatory
Systems (May 15, 2014). European Commission, Brussels, May 2014. Available at
SSRN: http://ssrn.com/abstract=2438242.
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