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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EP trade committee rejects meaningful TTIP amendments

Today the European Parliament International Trade committee voted on a draft resolution on the EU – US trade agreement (TTIP / TAFTA). La Quadrature du Net summarizes it: EU Parliament Opens The Door to Copyright Repression in TAFTA.

The INTA committee could have voted meaningful amendments into the draft resolution, but declined to do that.

Intellectual property

The committee adopted this compromise amendment:

“Stresses that intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPR), including geographical indications, and be consistent with international agreements; believes that other areas of divergence in IPR should be solved in line with international standards of protection;”

The words “precisely and clearly defined areas of intellectual property rights” came from an amendment proposed by Marietje Schaake and Metin Kazak. The clearly defined areas are still to be defined…

Schaake had proposed (some with other members of parliament) more amendments, which would have given guidance for the defining of areas. For instance amendment 121:

“11a. Stresses that given the rejection of the Anti-Counterfeiting Trade Agreement (ACTA), prompted by concerns about restrictions on digital freedoms and the open internet, online copyright enforcement, as well as intermediary liability, these measures should not be included or aimed at in the TTIP agreement, neither by explicitly binding provisions nor by introducing or committing to restrictive interpretation or implementation of relevant EU law;”

But those amendments didn’t make it, “precisely and clearly defined areas of intellectual property rights” ended up empty.

Openness

What happened with openness? Marietje Schaake and Metin Kazak proposed (amendment 176):

“15. Recalls the need for continuous transparency, engagement with the stakeholders, including business, environmental, consumer, labour, civil liberties and other representatives, throughout the negotiation process, in order to ensure fact-based discussions, proportionate input from various sides and to foster public support;”

Continuous transparency (…) throughout the negotiation process, that is meaningful. Schaake and Kazak seem to have considered that there was no chance that the amendment would be adopted, they settled for compromise amendment 16:

“Recalls the need for pro-active outreach and continuous and transparent engagement by the Commission with a wide range of stakeholders, including business, environmental, agricultural, consumer, labour and other representatives, throughout the negotiation process, in order to ensure fact-based discussions, build trust in the negotiations, obtain proportionate input from various sides and foster public support by taking stakeholders’ concerns into consideration; encourages all stakeholders to actively participate and put forward initiatives and information relevant to the negotiations;”

Continuous transparency (…) throughout the negotiation process became transparent engagement by the Commission with a wide range of stakeholders. Here only the engagement by the Commission has to be transparent, that is meaningless…

Thanks to La Quadrature du Net for sharing the compromise amendments (not published by the European Parliament) and the voting results with me. As the voting lists are not made public, the votes are very hard to follow, and as the compromise amendments are not published, the votes are impossible to follow.

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FFII letter to European Parliament Trade committee on agreement with US

Today the FFII sent a letter to the European Parliament committee on International Trade. Thursday 25 April 2013 the committee will vote on 198 amendments to a draft resolution on the EU – US trade agreement (TTIP / TAFTA)

Text as pdf, or below:

22 April 2013

Dear Members of the International Trade committee,

We are writing to express our concerns with the proposed trade agreement with the US (TTIP). We invite you to take our concerns into account when voting on the amendments to the draft resolution on the TTIP.

In this letter we argue that citizens have a right to openness; that all measures in the agreement have to fully respect our rights enshrined in human rights instruments, including the UN International Covenant on Economic, Social and Cultural Rights; that the agreement has to exclude intellectual property rights; and that the Parliament has to step in and defend democracy and the Treaties by excluding investor to state dispute settlement from the agreement.

Openness

The agreement will mostly attempt to deeply integrate EU and US laws, as the trade tariffs between the EU and US are already low. In our opinion, a deep integration of laws has to take place in public. Negotiations in international organisations show that openness is possible. Citizens have a right to openness. Everyone has the right “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)” of the International Covenant on Economic, Social and Cultural Rights. (ECOSOC, 2009)

Companies will have access to the draft texts. In the US hundreds of advisors, many of them corporate lobbyists, are considered cleared advisors. They have access to negotiation documents. (FFII, 2009) The EU does not have an official way of informing companies, but it happens in an unofficial way. (CEO, 2011) The EU can not allow discrimination, which will also create a real risk that the negotiations will lead to a biased result.

Human rights

According to a leaked version of the Commission’s draft mandate, (IUST, 2013) the preamble of the agreement will refer to shared values in such areas as human rights, fundamental freedoms, democracy and the rule of law. In our opinion, this is not a sufficient safeguard, as the preamble will not be binding. It is also unclear which values are shared. For instance, all EU member states have ratified the UN International Covenant on Economic, Social and Cultural Rights, while the US did not ratify this covenant. (EP, 2013) Furthermore, regarding human rights, European courts give a wide margin of appreciation to the domestic authorities. The courts only step in and protect human rights in severe cases. If the EU trades away our rights, we are only partially protected. To protect our human rights, all measures in the agreement will have to be balanced themselves. All of them have to fully respect our rights enshrined in human rights instruments, including the UN International Covenant on Economic,
Social and Cultural Rights.

Intellectual property

There is a deep divide in our societies over intellectual property rights. Exclusive rights on knowledge and culture harm access to knowledge and culture. This threatens health, food security and diffusion of green technology. Furthermore, before people had computers, it took an effort to infringe copyright; now, a mouse click is often enough. The internet made all of us infringers, this threatens our civil rights. It is essential to rethink copyright. In the software field, all developers may be infringers, as there are many trivial and over broad patents. It is also essential to rethink patent law. Trade agreements are not the right forum for this. The agreement has to exclude intellectual property rights, see the declaration signed by over 45 organisations: IP out of TAFTA. (PC, 2013)

Investor to state dispute settlement

An investor to state dispute settlement mechanism would create international arbitration tribunals above our high court and our human rights court. Multinationals will be able to sue the EU and its member states before such tribunals if changes in law threaten to make their profits lower. This would create a real risk to democracy, human rights, the public interest and our ability to solve financial crises. (Kelsey and Wallach, 2012; NGOs, 2013; Stiglitz, 2011) Both the EU and the US have strong protection for property, there is no need for international arbitration tribunals.

The leaked version of the Commission’s draft mandate rightfully notes that the agreement should not harm the EU’s and member states’ right to adopt measures necessary to pursue legitimate public policy objectives. But the Commission does not draw the logical conclusion that arbitration tribunals should not be the forums to decide whether the EU’s policy objectives are legitimate. In fact, the Commission wants to grant these ad hoc tribunals the power to take such essential decisions regarding the competence of the EU, decisions which are in essence constitutional decisions. The Commission’s proposal would create, without a change of the Treaties, ad hoc parallel constitutional tribunals, without a possibility to appeal to the EU Court of Justice – the Union’s “constitutional” court. It would be a “coup d’état” against the Union, on behalf of multinationals. In our opinion, the Parliament has to step in and defend democracy and the Treaties by excluding investor to state dispute settlement from the agreement. Disagreement with the US over the interpretation of a ratified agreement can be solved by carefully designed state to state dispute settlement.

Yours sincerely,

Ante Wessels

Foundation for a Free Information Infrastructure (FFII)

References

CEO (2011), http://corporateeurope.org/sites/default/files/attachments/lawsuit_backgrounder.pdf

ECOSOC (2009), Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, http://www2.ohchr.org/english/bodies/cescr/comments.htm

EP (2013), Question for written answer http://icg.greens-efa.eu/pipermail/hub/2013-March/000047.html

FFII (2009) http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=FFII-Ombudsman-06-2009.pdf

IUST (2013), http://www.s2bnetwork.org/fileadmin/dateien/downloads/EU_Draft_Mandate_-_Inside_US_Trade.pdf

Kelsey and Wallach, 2012, “Investor-State” Disputes in Trade Pacts Threaten Fundamental Principles of National Judicial Systems, http://tpplegal.files.wordpress.com/2012/05/isds-domestic-legal-process-background-brief.pdf

NGOs, 2013, European, Canadian and Quebec organizations, Transatlantic Statement Opposing Excessive Corporate Rights (Investor – State Dispute Settlement) in the EU – Canada Comprehensive Economic and Trade Agreement (CETA) http://tradejustice.ca/pdfs/Transatlantic%20Statement%20on%20Investor%20Rights%20in%20CETA.pdf

PC (2013), http://www.citizen.org/IP-out-of-TAFTA

Stiglitz, 2011, Capital restrictions letter to US administration, http://www.ase.tufts.edu/gdae/policy_research/CapCtrlsLetter.pdf

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198 amendments to European Parliament TTIP / TAFTA resolution

25 April at 10 am, the European Parliament International Trade committee will vote on a draft resolution on the proposed EU – US trade agreement (TAFTA / TTIP). There are 198 amendments, on many subjects, like intellectual property out (especially from amendment 114), others aim at stronger IP, investor – state dispute resolution out (amendments 163, 164), more transparency. Some mention ACTA.

http://www.europarl.europa.eu/meetdocs/2009_2014/organes/inta/inta_20130424_0900.htm
agenda at the top, amendments at the bottom.

See also Issues with EU draft mandate for the EU – US trade agreement
http://acta.ffii.org/?p=1773

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Text of trade agreement with Singapore will be published before the summer

Last week I wrote that the trade agreement with Singapore will be secret until it enters into force. The statement was based on an email from EU Trade Spokesperson John Clancy. It turns out this is not correct, the text will be published before the summer.

When I first contacted Mr Clancy, the FFII email server was down. I used a personal email address. I asked:

“On 16 December the EU and Singapore completed final negotiations on a free trade agreement (FTA) between the European Union and Singapore. I can not find the text of the FTA on the Commission’s website. Did the Commission publish the text, could I receive the text?”

Mr Clancy answered:

“Political negotiations were completed in December 2012 between the Commissioner and the Singapore Minister – the ‘handshake’ moment if you will.

However, there is between 18 months and 2 years of European institutional and democratic process to go through (from translating all the texts into all official EU languages, ‘legal scrubbing’ (checking of the texts by lawyer/linguists), signature of the Council (i.e. the Member States) before the agreed text can go before the European Parliament for a final ‘Yes/No’ vote. Only if there is a positive ‘yes’ vote by the EP does the agreement come into force and the text becomes ‘legal’ and is published.

We only wish – here at the Commission – that the time period could be shorter but it is out of our hands I am afraid.

So, unfortunately the text is not available yet.”

Today I had a phone call with Mr Clancy. He said that he had thought I was an ordinary citizen. So he had just given me a “snap explanation”, he summarized a complex process. If he would have known I was involved with an organisation, he would have been more accurate.

As I had simply asked whether I could receive the text, a correct answer could have been: “After legal verification we will publish the text on the website.”

Mr Clancy today said that the text will be published before the summer. I promised to publish his more accurate answer:

“Following our telephone conversation earlier today, please allow me to clarify my earlier email to you. The negotiations for the EU-Singapore Free Trade Agreement were completed in December 2012 in Singapore. This draft text is now progressing through the EU institutional process. This means that the draft text is currently undergoing legal checks or ‘legal scrubbing’ by the legal teams from both sides. When this is completed, the draft text will be initialled after which we intend to rapidly publish the text of the draft agreement on the DG trade website. The draft text will then be translated into all EU languages. The next step in the process is the formal European Commission endorsement of the draft agreement. Afterwards, the Council of the EU will be formally asked to approve the agreement. Finally, the draft text will then be voted upon by Members of the European Parliament in Plenary Session at a time of their choosing. Only if there is a ‘positive vote’ by the European Parliament does the text become ‘legal’ and valid. The Free Trade Agreement then enters into force after its publication in the Official Journal of the European Union. It was this formal publication of the final text I had in mind when we had initially been in contact. But as mentioned, the draft text will be made publicly available much earlier.

Thank you for the opportunity to provide this clarification to your organisation.”

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Trade agreement with Singapore secret until it enters into force

Update: Text of trade agreement with Singapore will be published before the summer

==========================================================

(FFII press release) Text also below:

Brussels, 12 April 2013 — The EU Commission decided to keep the trade agreement with Singapore secret until it enters into force. With this decision the Commission betrays European citizens and democracy, according to the Foundation for a Free Information Infrastructure (FFII).

In December 2012 EU Trade Commissioner Karel De Gucht and Singapore’s Minister of Trade and Industry Lim Hng Kiang completed final negotiations on a free trade agreement between the European Union and Singapore. The FFII wanted to analyse whether the text of the agreement is compatible with human rights enshrined in the UN International Covenant on Economic, Social and Cultural Rights. The FFII noted the Commission had not published the text and asked where it could be found.

EU Trade Spokesperson John Clancy wrote the FFII: “Only if there is a positive ‘yes’ vote by the EP does the agreement come into force and the text becomes ‘legal’ and is published.”

European and Singaporean citizens will not be able to scrutinize the text and provide input to parliaments. It will not be possible to make a human rights impact assessment. Parliaments will not be able to openly discuss the agreement, they will have to adopt or reject a secret text.

FFII analyst Ante Wessels: “The European Parliament overwhelmingly voted down the Anti-Counterfeiting Trade Agreement (ACTA) after citizens pointed out it would violate their human rights. This time the Commission hopes to have a ‘better result’ by keeping the text secret until it enters into force. This is nothing less than an assault on democracy. Without democracy, the union becomes an empire led by technocrats, disregarding human rights. The union is entering a dark era.”

Letter EU Trade Spokesperson John Clancy to FFII

“Political negotiations were completed in December 2012 between the Commissioner and the Singapore Minister – the ‘handshake’ moment if you will.

However, there is between 18 months and 2 years of European institutional and democratic process to go through (from translating all the texts into all official EU languages, ‘legal scrubbing’ (checking of the texts by lawyer/linguists), signature of the Council (i.e. the Member States) before the agreed text can go before the European Parliament for a final ‘Yes/No’ vote. Only if there is a positive ‘yes’ vote by the EP does the agreement come into force and the text becomes ‘legal’ and is published.

We only wish – here at the Commission – that the time period could be shorter but it is out of our hands I am afraid.

So, unfortunately the text is not available yet.”

Links

EU and Singapore agree on landmark trade deal (16/12/2012)
http://eeas.europa.eu/delegations/singapore/press_corner/all_news/news/2012/20121216_01_en.htm

FFII trade blog
http://acta.ffii.org/

Permanent link to this press release:
http://press.ffii.org/Trade%20agreement%20with%20Singapore%20secret%20until%20it%20enters%20into%20force

Contact and about FFII, see the press release.

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Issues with EU draft mandate for the EU – US trade agreement

Inside U.S. Trade obtained the draft EU mandate for the EU – US trade agreement (TTIP / TAFTA) (pdf), this is the proposal the Commission sent to the Council for a mandate to start the negotiations. I note 6 issues here.

Copyright and patents

The agreement will include intellectual property rights. This is wrong, as there is a deep divide in our societies over intellectual property rights. Exclusive rights on knowledge and culture harm access to knowledge and culture. This threatens health, food security and diffusion of green technology. Furthermore, before people had computers, it took an effort to infringe copyright; now, a mouse click is often enough to infringe it. The internet made all of us infringers. It is essential to rethink copyright.

In the software field, all developers may be infringers, as there are many trivial and over broad patents. It is also essential to rethink patent law. Trade agreements are not the right forum for this. See the declaration signed by over 45 organisations: IP out of TAFTA.

Human rights

The preamble of the agreement will refer to shared values in such areas as human rights, fundamental freedoms, democracy and the rule of law. There are some issues here. First, the preamble will not be binding. Second, which values are shared? All EU member states have ratified the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), while the US did not ratify this covenant. Do the EU and US have the same or different ideas on economic, social and cultural rights? Finally, European courts give a wide margin of appreciation to the domestic authorities. The courts only step in and protect human rights in severe cases. If the EU trades away our rights, we are only partially protected.

The approach proposed by the Commission – references in the not binding preamble – is not sufficient.

Strong binding rules in trade agreements are intrusive. Equally strong human rights protection could possibly provide a solution. But the protection is not equally strong. This creates a gap. To protect human rights, all measures in the agreement will have to be balanced themselves. All of them have to fully respect our rights enshrined in human rights instruments, including the UN International Covenant on Economic, Social and Cultural Rights

Openness

The trade tariffs between the EU and US are already low. The agreement will mostly attempt to deeply integrate EU and US law. This is highly sensitive and has to be done in public. It is possible to do this in public, it is the way negotiations happen in international organisations. We have a right to openness. Everyone has the right “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)” of the International Covenant on Economic, Social and Cultural Rights.

But the negotiations will be secret and the draft negotiation texts will be secret. This is a violation of our rights. Furthermore, companies will have access to the draft texts. In the US hundreds of advisors, many of them corporate lobbyists, are considered cleared advisors (pdf). They have access to negotiation documents. The EU does not have an official way of informing companies, but it happens in an unofficial way (pdf). Companies will have a stronger influence on the negotiations than citizens. This creates a real risk that the negotiations will lead to a biased result.

Tribunals above our high court

The agreement will contain investor to state dispute settlement. This creates international investor tribunals above our high court. Multinationals will be able to sue states if changes in law threaten to make their profits lower. This is nothing less than an assault on democracy, human rights and the public interest. Capital controls like in Cyprus? Forbidden. We trade away our ability to solve existential crises.

The draft mandate notes that the agreement should not harm the EU’s and member states’ right to adopt measures necessary to pursue legitimate public policy objectives. This creates a conflict. On the one hand explicit language forbidding certain policy instruments, on the other hand the same policy instruments should be available. The agreement will grant arbitration tribunals the right to solve such conflicts, they will have decisive power on essential questions, which may even be existential questions. We should never allow this, it distorts the separation of powers. No tribunals above our high court, the only court we can entrust with essential and existential questions.

The benefits the agreement will bring

The draft mandate notes that the agreement could increase the EU’s national income by up to 86 billion euro. But academics are less certain of this. Evenett and Stern note: “Rather, we don’t really know what it will do because trade economists have failed to develop the necessary tools for understanding its impact. It is time for policy analysts to re-tool.”

They also wrote: “At its best – as John Rawls might have put it – this is tantamount to commercial policymaking behind the veil of ignorance. Less charitably, this is muddling through – with the risk that, in the rush to defend any accord, evidence-based policymaking becomes policy-based evidence making.”

There is a serious risk that because of the euro crisis the EU may be desperate to claim a success, and adopt a trade agreement that brings less than claimed, and damages more than admitted.

Policy space

The EU needs policy space to rethink copyright and patent law, and also for future legislative improvements in response to changes in technology or policy. A deep integration of laws with the US will take away policy space. Unlike with EU law, changing the rules later on will not be possible.

We need to know which steps will be beneficial without being detrimental. We need public debate.

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The EU-US trade agreement and obligations under ICESCR

Seven members of the European Parliament (Greens/EFA) asked the Commission a question on the proposed EU-US trade agreement.

The EU is obliged to respect, protect and fulfil the human rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The EU’s obligation results from the constitutional traditions common to the Member States (Article 6(3) TEU), since all EU member states have ratified the ICESCR. The EU must desist from acts and omissions that create a real risk of nullifying or impairing the enjoyment of ICESCR rights (see also Case C-73/08 Bressol and Others).

The United States has signed but not ratified the ICESCR.

- How will the Commission ensure, during the negotiations of the announced trade agreement with the US, that the ICESCR rights are respected, including the right of everyone “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)”*.

*) ECOSOC (2009), Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, http://www2.ohchr.org/english/bodies/cescr/comments.htm

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EU Court judgment on ACTA secrecy is a disservice to democracy

The General Court of the European Court of Justice gave a judgment in Case T‑301/10, In ‘t Veld against European Commission about transparency of ACTA documents, 19 March 2013.

The Court upholds the secrecy in general, and only finds regarding a few documents that the secrecy was wrong.

The Court considers “that public participation in the procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted.” (paragraph 120)

The Court agrees with the Commission that secrecy is necessary: “As the Commission emphasises, establishing and protecting a sphere of mutual trust in the context of international relations is a very delicate exercise.” (paragraph 126)

The Court overlooks many examples of international organisations where negotiations take place with much more openness and input from civil society.

The Court disregards that multinationals do have access to negotiation texts.

The Court disregards that meaningful debates in parliaments are impossible this way.

The Court disregards that scrutiny gives a higher quality.

In paragraph 181 the Court considers “Moreover, and quite incidentally, it should be noted that the conduct of negotiations for the conclusion of an international agreement falls, in principle, within the domain of the executive (in ‘t Veld v Council, paragraph 120 above, paragraph 88) and that those negotiations do not in any way prejudice the public debate that may develop once the international agreement is signed, in the context of the ratification procedure.”

Trade agreements have many chapters and may have a total of a 1000 pages, are presented as deals that will make us all richer. The pressure to say yes is enormous.

With this judgment, the Court disregards article 1 Treaty on European Union (TEU): “(…) This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.”

The Court disregards the right of everyone “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)”. (ECOSOC, 2009)

We live in a union with a democratic deficit. Rigorous openness would help. The Court says no to that.

The Court’s judgment is a disservice to democracy.

—-
ECOSOC (2009), UN Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, http://www2.ohchr.org/english/bodies/cescr/comments.htm

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Do not turn TAFTA into ACTA v2.0

Today, more than 35 European and United States civil society organisations released this declaration:

IP OUT OF TAFTA

Last year, millions of Americans told their government not to undermine the open internet. We sent the SOPA and PIPA bills down to defeat.

Soon after, hundreds of thousands of people took to the streets of Europe to protest against ACTA, a secretive trade agreement that would have violated our rights online and chilled generic drug competition.

Meanwhile, leaked trade texts revealed US and EU threats to access to affordable medicines, which significantly disrupted trade talks in India and the Pacific.

On February 13, the US President Barack Obama, the European Council President Herman Van Rompuy, and the European Commission President José Manuel Barroso announced the official launch of negotiations of a Transatlantic Free Trade Agreement (TAFTA)—also touted as the Transatlantic Trade and Investment Partnership, or TTIP.

We, the undersigned, are internet freedom and public health groups, activists, and other public interest leaders dedicated to the rights of all people to access cultural and educational resources and affordable medicines, to enjoy a free and open internet, and to benefit from open and needs-driven innovation.

First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive “trade” negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.

Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called “intellectual property”. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.

Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.

Unless “intellectual property” is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes’ rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard—not in closed negotiations that give privileged access to corporate insiders.

The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.

IP OUT OF TAFTA

From the FFII press release:

FFII analyst Ante Wessels: “The industry already dreams of setting a gold standard in areas such as intellectual property rights protection. Does that sound familiar? Yes, it does. It sounds like ACTA, the agreement overwhelmingly voted down last July in the European Parliament. ACTA was, in almost all aspects, a drama, out of touch with our societies. Trade agreements are not the right forum to discuss intellectual property rights.”

The FFII regarding transparency:

On average, the trade tariffs between the EU and the US are already low (under 3%). To enlarge trade, progress will have to come from a deep integration of EU and US laws. In 2010, the EU Ombudsman agreed with the FFII that citizens have a clear interest in being informed about agreements that make it necessary for the EU to change laws.

FFII analyst Ante Wessels: “We have a clear interest in, and a right to, being informed about the negotiations”

FFII press release

FFII France made a French translation of the declaration:

Les organisations de la société civile disent non à TAFTA
Sortir la Propriété Intellectuelle de TAFTA

EFF: Transatlantic Civil Society Declaration: Leave Copyright and Patent Provisions Out of TAFTA

La Quadrature du Net: No Copyright in EU-US Trade Agreement!

Glyn Moody: Why TAFTA Matters, and What We Should Do About It

Vrijschrift: Maak van TAFTA geen ACTA v2.0

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