Trade partnership gets nod from majority in European Parliament

The majority of the European Parliament welcomed the start of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) – a EU-US free trade agreement - in a resolution released in Strasbourg on May 15. “Growth and jobs at no cost” is the argument cited by members of conservative, liberal and socialist party groups, as well as the  European Commission (EC) and the Irish presidency in support of the discussion kick-off. The Green Party group wanted parliament to send the EC negotiating team a bigger package of conditions avoiding a potential degradation of European standards in the areas of data protection or the prevention of cloning. European civil rights organisations warn against a mega-ACTA-like free trade agreement.

460 members of the European Parliament voted in favour of the resolution, 105 against. The non-binding resolution mandates the Council of Member States to decide on the negotiation mandate for the experts of the EC Directorate General for Trade in a dedicated session on June 14. At the same time a smaller majority of the European Parliament opted for the exclusion of audiovisual services against a plea by Trade Commissioner Karel de Gucht before the vote.

To exclude or not to exclude the audiovisual sector

“A full scale exclusion is neither necessary nor justified,” De Gucht appealed to parliament. EU audiovisual and cultural policy allows for state interventions which can range from public subsidies to language quota. The EU for example has poured 755 million Euro in the MEDIA 2007-2013 programme. A similar follow-up programme for “Creative Europe“ 2014-2020 is currently being prepared. Concerns about potential barriers for such programmes through the TTIP and bigger bites of the US media industry and tech-driven new media providers into the national markets resulted in a petition from EU filmmakers in recent weeks.

De Gucht assured member states could keep quota and develop additional measures to promote the cultural space, yet there could not be a serious argument in favour of extending quota or "100% excluding foreign content”. “We all acknowledge,” he said, “that the main challenge is the evolution of the digital sector.” The European Parliament could not, De Gucht warned, put certain important sectors of EU interest in its resolution while at the same time plea for the exclusion for audiovisual services.

On intellectual property issues more generally, the Commission and the majority in parliament seem to be much more in agreement, with the resolution from last week stating that “the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications, and should be consistent with existing international agreements”. Civil rights groups in the EU asked to exclude intellectual property completely.

Following the vote, French civil society group La Quadrature du Net warned against a potential Super-ACTA, referring to the failed Anti-Counterfeiting Trade Agreement (ACTA). Yet Monica Horton, Visiting Fellow at the London School of Economics and author of “The Copyright Enforcement Enigma“ writes in her blogpost on the resolution: “ACTA clearly set out to target internet downloading and was intended to set a ‘gold standard’ for global intellectual property rights enforcement. I suspect the TTIP will facilitate an attempt at some kind of rapprochement of EU and US copyright enforcement law, but anything more ambitious on intellectual property rights, such as new measures for intermediaries, would be politically foolish.”

Civil rights activists: lack of meaningful guidelines

The Foundation for a Free Information Infrastructure complained that more meaningful guidelines with regard to intellectual property (as well as with regard to the much debated ACTA-killer lack of transparency) did not make it into the resolution. Liberal Party member Marietje Schaake who invited the public to a workshop on the TTIP intellectual property issues before the plenary had proposed explicitly to exclude “online copyright enforcement, as well as intermediary liability” thereby answering to the ACTA opponents' concerns “about restrictions on digital freedoms and the open internet”.

Referring to examples from other free trade partnerships that the US is engaged with, Green Party member Yannick Jadot requested to exclude the option of Investor-to-State Dispute Settlement from the negotiating mandate. The number of these ‘out of court dispute settlements’ has risen sharply according to a report from the United Nations Conference on Trade and Development.

Investor-to-State Dispute Settlement rules can bring states high fines from companies that feel their investments have been hampered by state decisions. Investor-to-State Dispute Settlement tribunals for example have ruled that “sovereign powers relating to people’s right to water must not be exercised by a public authority in an ‘absolute’ manner that would defeat the investor’s BIT rights“ (see Saur vs Argentina). In a case analysed by US civil rights organisation Public Citizen, US pharma company Eli Lilly asked for a ISDS decision against Canada because the Canadian “Utility Doctrine“ favouring generics was violating IP granted under the North-American Free Trade Agreement (NAFTA).

The telecom and internet sector is also expected to see more cases spring up. Norwegian telecommunication provider Telenor, for example, was pushed back when Indian Courts cancelled 122 telecom licenses in the country in an anti-corruption case by announcing it would seek dispute resolution last year.

Concerns over transparency

Many Members of the European Parliament also warned against the closed-door-nature of the negotiations without enough democratic oversight. The text of the negotiation mandate is classified and a draft only became available through a leak on netzpolitik.org (see here).

Throughout the negotiations, only the lead committee - the Committee on International Trade - will have some limited access to documents and information. The Commission is offering so called stakeholder dialogue meetings to discuss issues (see the second one on TTIP here), but information offered on the negotiations in these meetings has been limited. At least in this, there is a clear parallel to ACTA.