02 January 2016

TTIP Update IX

As the calendar year draws to a close, you might expect the world of trade agreements like TAFTA/TTIP to be shutting down too.  Surprisingly, though, that's not the case.  The last few weeks have seen more activity and revelations than any so far.   In fact, so much has been revealed in the last few days that it will take several updates over the next week or two to explore the implications.

First of all, let's look at an astonishing attack on Corporate Europe Observatory, the group that obtained the important leak about the proposed TAFTA/TTIP Regulatory Council, which I discussed in my previous  TTIP Update.  The post comes from the EU Trade Spokesman John Clancy, and the fact that the European Commission felt moved to publish it speaks volumes about its increasing nervousness: you don't resort to such tactics if you're feeling confident of your position.  Here's how it begins:

Anti-trade and anti-business lobby group Corporate Europe Observatory (CEO) have scored an own goal with their latest claims against the Transatlantic Trade and Investment Partnership (TTIP). The only thing the latest so-called 'leaked document' published by CEO reveals is confirmation of what the EU has been saying all along; namely that any future deal between the EU and the US will 'reaffirm their [EU Member State governments' and the US government's] sovereign right to adopt new regulatory initiatives, to regulate in pursuit of legitimate public, policy objectives and to ensure that their laws and policies provide for and encourage high levels of environmental, health, safety, consumer and labour protection.'

"Reaffirming" those things doesn't really do much.  If a US company uses the investor-state dispute settlement (ISDS) provisions that are currently in TAFTA/TTIP, to sue the European Union, and the ISDS tribunal upholds the claim, the EU and national governments can "re-affirm" their rights as much as they like, but they will still be expected to pay up, and the US government will doubtless support that decision.  The point is, the tribunal may not agree, and can't be forced to follow any supposed EU line, because it is inherently above national or even European laws - that's the problem.

Here's the next section from Clancy:

Furthermore, the so-called 'leaked document' reflects almost in its entirety the EU's initial position paper already made public in July 2013 and available on-line. This sets out how the EU and US could work more closely together, and more openly, when drawing up future regulations. The changes are designed simply to make future regulations more effective and efficient for both business and consumers – nothing more, nothing less.

So here's what that position paper has to say on the subject:

A body with regulatory competences (a regulatory cooperation council or committee), assisted by sectoral working groups, as appro priate, which could be charged with overseeing the implementation of the regulatory provi sions of the TTIP and make recommendations to the body with decision-making power under TTIP. This regulatory cooperation body would for example examine concrete proposals on how to enhance greater compatibility/conver gence, including through recognition of equiva lence of regulations, mutual recognition, etc. It would also consider amendments to sectoral annexes and the addition of new ones and encourage new regulatory cooperation initia tives. Sectoral regulatory cooperation working groups chaired by the competent regulatory authorities would be established to report to report to the regulatory cooperation council or committee. The competences of the regulatory cooperation council or committee will be without prejudice to the role of committees with specific responsibility on issue areas such as SPS.

In other words, it's largely about overseeing the implementation of TTIP, not going beyond it.  Clancy also writes the following:

details of this [Regulatory Council] along with a broad explanation of the regulatory ambitions of the future TTIP agreement were announced by EU Trade Commissioner Karel De Gucht on 10th October in a speech to the Aspen Institute in Prague

Here's what De Gucht said then (.pdf):

I therefore propose that th e TTIP establishes a new Regulatory Cooperation Council that brings together the heads of the most important EU and US regulatory agencies.

The council would monitor the implementation of commitments made and consider new priorities for regulatory coopera tion - also in response to proposals from stakeholders. In some cases it could also ask regulators or standards bodies to develop regulations jointly that could then have a good chance of becoming international standards.

Notice again how passive the Regulatory Cooperation Council (RCC) is there: it would "monitor" implementations, "consider" new priorities, and "in some cases" ask regulators to come up with something new.  Contrast that with what we read in the CEO leaked document (.pdf):

The functions of the RCC will include inter alia:

Considering and analysing, with the help of the relevant working groups substantive joint submissions from EU and US stakeholders or submissions from either Party on how to deepen regulatory cooperation towards increased compatibility for both future and existing regulatory measures;

The RCC may be assisted by sectoral ad hoc working groups. In the domain of financial services the functions of the RCC to monitor, guide the cooperation and to prepare the yearly Regulatory Programme will be assumed by a competent sectorial body established by the TTIP.

Specific modalities will be established for interaction of the RCC with legislators (US Congress and the European Parliament). The RCC should interact with stakeholders, including business, consumers and trade unions. For this purpose a EU-US multi-stakeholder advisory committee or similar body should be established that would regularly meet with and work with EU competent authorities and US regulators in crafting regulatory measures or taking decisions how to further compatibility of existing one (e.g. through mutual reliance, recognition, etc.).

Suddenly the RCC has become an active participant in the formulation of new regulations, interacting directly with legislators on both sides of the Atlantic, and even "crafting regulatory measures".  That's the key change the Clancy chooses to ignore, because it reveals the first outlines of the European Commission's emerging plan to give big business the deregulation it is demanding, but without making it too obvious by enshrining it in TTIP itself for all to see.  Instead, health and safety regulations on both sides of the Atlantic will be swept away – sorry, made "compatible" – through a very gradual process brought about by the dull-sounding  Regulatory Cooperation Council that will in fact effectively veto regulatory changes in favour of the public, which diminish corporate profits.  This will introduced a regulatory ratchet that ensures new laws and rules are always in favour of companies, just as the copyright ratchet ensures that changes to law are always in favour of copyright companies, never the public.

Clancy's last paragraph is as follows:

The EU welcomes an open public discussion on TTIP including the important input from civil society including all stakeholders whether NGOs or business. Unfortunately, CEO only does a disservice to this important discussion with misleading and exaggerated claims once again. Since the launch of EU-US discussions, the EU Commission has welcomed an open public debate but such a debate should be based upon the facts and not the spin.

The European Commission has not invited "open public discussion" -- I challenge it to point out any occasion when the public was invited and able to discuss TTIP with the Commission in any meaningful way – occasional sessions held after negotiating rounds do not count.  The only serious discussions that have been taking place are with big business.  We know this for a fact thanks to a Freedom of Information request from CEO, which found that of the European Commission's 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists. 

And for the European Commission to accuse CEO of "spin" is astonishingly hypocritical.  Here, for example, the headline that Clancy used for his post:

Anti-Trade lobby group CEO scores own goal on latest TTIP 'revelation'

But as CEO points out in its own rebuttal, it is not "anti-trade", as its actions prove:

Corporate Europe Observatory has been a part of an effort for years to develop an alternative trade policy. We’ve done that in collaboration with a broad variety of social movements and NGOs, and only a few weeks ago, we were part of launching the Alternative Trade Mandate, whose proposal is to make EU trade and investment policy work for people and the planet, not just the profit interests of a few

But there's a more important misdirection in Clancy's headline.  He is trying to frame the European Commission as pro-trade, and CEO as "anti-trade".  But what is under discussion here is not trade, it is the regulations that protect our health and safety, and help preserve the environment, for example.  

If the European Commission truly wanted a debate "based upon the facts and not the spin", it would acknowledge that TAFTA/TTIP is only tangentially about trade barriers, and mostly about national and European regulations.  And it would stop trying to re-define long-standing measures that protect the public, and which were drawn up in an open and democratic way, as "non-trade barriers", that need to be reduced or removed.

By adopting this language, it reveals it is engaged in an attempt at massive deregulation in favour of the transnational corporations it meets with so much, to the disfavour of the European public whose only role here seems to be to pay the not-inconsiderable wages of the European Commission and its staff.

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