EU member states may not have a veto on TTIP / TAFTA

After the negotiations, the EU member states may not have a veto on the proposed trade agreement with the US (TTIP / TAFTA).

I wrote earlier about some issues with the EU draft mandate for the EU – US trade agreement.

In addition, I note that the draft TTIP mandate (pdf) does not mention criminal measures. Criminal measures were the reason that the EU member states had a veto on ACTA (Anti-Counterfeiting Trade Agreement). With ACTA, the member states negotiated the criminal measures. After the negotiations, the Commission proposed ACTA as a mixed agreement to Council and Parliament. A mixed agreement has to be ratified by the EU and the member states. This gives the national parliaments a strong position.

The draft TTIP / TAFTA mandate notes about the negotiations that the Commission will negotiate, in consultation with the member states in the appropriate committee of the Council. No role for the member states in the negotiations itself.

The consequence of this approach is that the Commission may, after the negotiations, exercise its competence, and make an EU only proposal for adoption by the Council (after consent by the Parliament). The Council shall decide with a qualified majority to ratify. No member states ratification is needed, no strong role for national parliaments.

Basically, if the Commission negotiates some goodies for the German industry, and some goodies for some other big EU member states (having most votes in Council and Parliament), a majority for the proposed agreement is as good as certain, however bad it may be for the interests of smaller EU member states, for the public interest, democracy, access to medicine and human rights.

The mandate is very broad. If the Council authorises the Commission to negotiate, the smaller member states will have lost their grip on the outcome. They may like to take a good look at the mandate.

Unanimity

Mixed agreements have to be ratified by the EU and the member states, this gives national parliaments a strong position. They can crash an agreement by refusing to ratify. There is also an other kind of veto, but weaker.

The Council decides by qualified majority. There are some exceptions for which unanimity in the Council is needed, see art 207 TFEU. While this implies a veto too, it is a less strong veto than the one a mixed agreement gives, as unanimity regards only limited areas, can be contested and a government may not listen to its parliament (may put a resolution aside) and vote in favour of an agreement in the Council even if its parliament is against it. (We saw such betrayal of national parliaments during the software patents directive proposal procedure.)

Article 207(4):

“For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.

For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.

The Council shall also act unanimously for the negotiation and conclusion of agreements:

(a)in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity;

(b)in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.

The exceptions for which unanimity is needed regard the cultural exception (“cultural diversity” in the Treaties) France is concerned about. They also regard social, education and health services, but there may be a high threshold for unanimity (“risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them”). Regarding “commercial aspects of intellectual property”, that is not applicable here, as internal IP rules are normally adopted by qualified majority. The unanimity exceptions (TFEU 118 language arrangements and TFEU 262 confer jurisdiction) will not be part of the TTIP.

(I leave trade in services and foreign direct investment to others.)

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