EU trade and its impact on internet policy

The public outcry on the EU-US Free-Trade Agreement, the Trans-Atlantic Trade and Investment Partnership (TTIP), has manifested itself this week. The Stop TTIP campaign topped the one million signature mark just ahead of the Cecilia Malmstroem’s first official meeting as a new Trade Commissioner with the International Trade Committee (INTA) 3 December in Brussels. The petition illustrates the lack of trust in the EU trade policy. Malmstroem promised to do something about it.

Malmstroem announces a new strategy for EU trade policy

EU Trade Commissioner Cecilia Malmstroem this week announced she is preparing a communication on her outlook to the future EU trade policy. It would address where the EU wants to go in terms of trade policy, how trade policy could be “more responsive to the need of citizens“ and how bilateral, plurilateral and multilateral negotiations could be reconciled.

Trade policy has been the focus of harsh criticism ever since the notorious closed-door negotiations on the plurilateral Anti-Counterfeiting Trade Agreement. Can Malmstroem deliver on her promises, including those of greater transparency and dialogue in all the negotiations going on at the same time? When meeting with the INTA on Wednesday and with stakeholders and civil society on Thursday this week in Brussels, Malmstroem faced questions on the trade agenda and also some warnings against allowing negotiations on “data flows“, data protection and intellectual property regimes.

TTIP and transparency

Malmstroem brought with her a transparency initiative agreed upon in the European Commission the week before. From now on, INTA members, 13 out of the 751 members of the European Parliament – would be able to see the negotiating documents for TTIP, which Malmstroem said was the “biggest fish“ in trade policy. The Commission would also classify less TTIP documents in order to give the public greater access. More EU texts for the negotiations would be made public – once shared with the US counterparts.

“We cannot publish the US documents,” she added, but transparency was an issue in the US as well and when travelling to Washington next week she intends to talk to United States Trade Representative Michael Froman about the issue. So while committing to more openness and dialogue short of full consultations on topics related toTTIP, she also said “there will be some documents we will not be able to share with the public“ and admonished the Parliament she could only give them full access if papers that “do need to stay confidential stay that way“.

She was currently working with the INTA secretariat on how restricted documents could be shared. Access to the “reading room“ was still barred for the normal INTA member, Socialists and Democrats member Joerg Leichtfried reported. Only at the beginning of next year he will be allowed in.

Mixed reactions to Malmstroem’s first move

Giving MEPs access to the documents in fact is a matter-of-course, Green Party member Ska Keller wrote drily in a first reaction calling the transparency initiative mere “window dressing“. Left Party member Helmut Scholz considered it: “a positive step, yet far from satisfactory. More members of parliament will get access, indeed, but they are not allowed to talk about documents which means journalists or civil society will have no access.“

Transparency was “no luxury“, Cécile Toubeau, Policy Officer at Transport & Environment and a member of the EU selected TTIP advisory committee, said during the stakeholder meeting with the Commissioner. Toubeau challenged Malmstroem asking how the new trade strategy was going to involve citizens in deliberations.

Information technology, data flows and intellectual property - hidden in the fine print?

Another stern warning was reiterated by former Commission Vice President turned MEP and Bertelsmann Board of Trustees member, Viviane Reding. Reding warned against an “à la carte-transparency“ for TTIP only.

As the Parliament's rapporteur for TISA, the Trade in Services Agreement, Reding demanded the publication negotiation mandate and the regulatory part of that agreement. The former Justice Commissioner questioned the potential effects of TISA on data protection. According to her sources “it seems that the US has proposed rules on data flows specifically aimed at creating exemptions for privacy and data protection. You know the position of this house and my position,“ Reding said.

TISA is a plurilateral agreement negotiated rather secretly outside of the WTO since 2012. The three meagre position papers of the EU were published this summer, clearly are not up to the task to appease concerns over its potenial to open a back-door into the EU data protection regime. The general exception in the EU position text do sound weak:

<blockquote>“nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures (...) necessary to secure compliance with laws or regulations which are not inconsistent (emphasis ours) with the provisions of this Agreement including those relating to (…) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;“</blockquote>

Can the Commission negotiate data protection, intellectual property rights or even net neutrality while they are pending on the agenda of the EU legislators, Reagan MacDonald from Access asked during the stakeholder meeting. It is “not unusual“, a Commission official answered, “that we negotiate when the regulation in Europe is in an evolution. They can come together at the end, but there is no guarantee that they will.“ Malmstroem said, that for TTIP, there had been no intellectual property negotiations on digital products for the time being.

Trade agenda

A much broader look on the dependencies and possible effects of what economists have said has developed into a spaghetti ball of trade negotiations was said to be in much need of more critical MEPs and civil society organisations. Currently the Commission drives around 20 bilateral or plurilateral negotiations, on top of the Doha round and the Information and Technology Agreement negotiations that the World Trade Organisation is eager to conclude.