EU publishes TTIP mandate

Battle over transparency prompts the EU’s member states to release details of the type of trade deal they want with the US.

The European Union’s member states have today published the EU’s official guidelines for negotiators working on a free-trade deal with the United States, bowing to mounting pressure from the public, the European Parliament and the European Commission.

Karel De Gucht, the outgoing European commissioner for trade, said that he was “delighted” by the decision to release the negotiating mandate, which was taken by EU member states’ ambassadors yesterday evening.

De Gucht said that “it allows everyone to see precisely how the EU wants this deal to work, so it contributes to economic growth and jobs’ creation across Europe while keeping our commitment to maintain high level of protection for the environment, health, safety, consumers, data privacy, or any other public policy goal”.

The mandate sets the parameters within which the negotiators for the EU – officials from the Commission – can strike agreements with the US in particular areas, or ‘chapters’, of the negotiations.

In an effort to give negotiators room for manoeuvre, the wording of the mandate is typically general and short, but the guidelines nonetheless set the tone, direction and limits of negotiations.

One area that has been particularly contentious during the first 15 months of the negotiations relates to investment protection and, in particular, how disputes between states and investors should be resolved. Anxieties about the investor-state dispute settlement mechanism has made its acronym – ISDS – commonplace in a wide range of European non-governmental organisations active in trade, labour, environmental and transparency issues. Their concerns that inclusion of an ISDS clause in the emerging Transatlantic Trade and Investment Partnership (TTIP) earlier this year prompted the Commission to put negotiations on investment protection on ice, pending the results of a public consultation. Opposition to an ISDS mechanism ensured that the 29 September confirmation hearing in the European Parliament for the incoming European commissioner for trade, Cecilia Malmström, was dominated by whether the ISDS clause should be excluded from the TTIP talks.

The declassified mandate has three sentences on dispute settlement: “The Agreement will include an appropriate dispute settlement mechanism, which will ensure that the Parties observe mutually agreed rules,” it states, continuing: “The Agreement should include provisions for expedient problem-solving such as a flexible mediation mechanism. This mechanism will pay special attention to facilitating the resolution of differences in NTB [non-tariff barrier] issues.”

Publication of the mandate has been one of the major points of contention in a broader battle about the level of transparency that should be introduced into trade talks, a battle that also entails questions about the rights and responsibilities of the EU’s member states, the European Commission, the European Parliament and national parliaments in the EU. Proponents of publication believe that transparency is critical to ensuring that the European public will support the eventual deal, which promises to be the biggest bilateral agreement ever struck and to reach into areas not traditionally addressed in free-trade agreements.

Marietje Schaake, a Dutch liberal MEP and a leading voice in the European Parliament on the TTIP talks, said that the decision to publish the mandate “shows that governments are finally realising that more transparency and accessibility are needed in the negotiations on TTIP”.

“It is ironic,” she added, “that the mandate, having been leaked previously, has already been available for over a year.”

A small group of member states continued to resist publication until the end, but diplomatic sources say that the largest member states backed the mandate’s release.

The first year of talks has seen the leaking of other confidential papers, outlining in some detail the European Commission’s positions on energy and chemicals.

The Commission’s recently concluded negotiations of a free-trade agreement with Canada were also affected by leaks, including the disclosure of particularly sensitive information: the ‘landing positions’ – the final positions – that the Commission would be willing to accept in negotiations.

The Commission and Canada officially concluded negotiations last month. The text of the agreement is now being reviewed by lawyers and is, therefore, considered by both sides to be a work a progress. Nonetheless, the Commission last month published the full negotiated text, again bowing to public pressure.

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