The EU Commission has significantly increased transparency in its trade policy in recent years, not least in response to the controversy over the Transatlantic Trade and Investment Partnership. Niels Gheyle and Ferdi De Ville explain why these moves will not likely satisfy civil society groups, although they give the Commission better tools to fend off accusations of secrecy.
European trade commissioner Cecilia Malmström took fresh steps in mid-September to improve transparency and inclusiveness in EU trade policy.
The move followed on European Commission president Jean-Claude Juncker’s 2017 State of Union speech, where he announced that his institution would publish all draft trade negotiation mandates it is seeking from member states. The Commission also announced that it would establish a permanent trade advisory group.
Commentators went on to depict contemporary EU trade policy as “the most transparent in the world”. However, transparency criticisms vis-à-vis EU trade policy are unlikely to disappear. The reason is that non-governmental organisations and the Commission conceptualise transparency differently.
Calls for increased transparency and participation of civil society actors such as trade unions, NGOs, and social movements have been growing ever since trade policy started moving beyond mere border tariff negotiations.
The controversy over the ‘secrecy’ of EU-US TTIP negotiations became one of the focal points of the tense debate about transparency. Transparency has become an issue about which both sides in the debate on trade policy could agree. For the Commission, transparency became the one policy it needed to change to win back political support for TTIP.
Despite the many recent Commission “transparency initiatives”, the controversy has remained unresolved. During the now-stalled TTIP negotiations, the Commission argued that this was “the most transparent negotiation ever”, while civil society argued it was all a sham.
In a recently published article, we analyse what business, NGOs and trade unions were actually asking from the Commission during the TTIP negotiations and beyond. The input for this came from contributions these groups provided to a European Ombudsman consultation late 2014. We compare their demands to the information the Commission provided during the contested episode. By comparing supply and demand, complemented with interviews with the Commission and NGO representatives, we were able to explain why the conflict persists.
What we found was that both the level and the type of transparency asked by civil society do not fully overlap with what the Commission has provided, despite several transparency initiatives.
With respect to the level of transparency, civil society organisations wanted access to day-to-day negotiating documents, not explanatory leaflets about how trade is benefitting everyone and which position the EU takes in very general positions papers.
In particular, timely release of textual proposals on all negotiating positions, complete lists and minutes of meetings of Commission officials with third parties, consolidated texts, negotiating mandates, and all correspondence between third parties and officials were popular demands.
This position stood in contrast with the business side, where the general mood was very positive about how trade policy was being made.
So why is the debate on transparency in trade policy in the EU so fraught?
Civil society demand for participation
Our analysis and our interviews show that NGOs argue that transparency is closely linked to participation: it is a stepping stone to meaningfully influence the decision-making process. To civil society groups, what is currently in place in terms of participatory mechanisms does not suffice. Many groups criticise the Commission’s regularly convened Civil Society Dialogue on trade, for example. To them, it does not deliver a “dialogue”, but rather a “one-way briefing”.
To NGOs, public consultations organised by the Commission are also depicted as totally inadequate to gauge the public’s needs and wishes. The now dormant TTIP Advisory Group was for some merely “a tool to whitewash a non-transparent process”.
NGOs not only favour upgrading current consultation mechanisms, but also additional ones. These could take place during different stages in a trade negotiation, for example, before the member state mandate was given, after the release of an EU negotiating position, or after the conclusion of an agreement. Consultations should also be more focused, for example on specific issues that could impact EU and national rule-making, civil society groups argue.
In response to these criticisms, the Commission has made substantive changes to policy over the years. For example, it reinforced and ramped up existing practices, such as convening the TTIP Advisory Group in 2014, holding stakeholder meetings during TTIP negotiation rounds, and publishing explanatory leaflets about its positions and the general evolution of the negotiating process.
The Commission also took new steps: it released EU textual proposals for different chapters in TTIP, a practice it now continues in other trade negotiations. The Commission made many more documents available to MEPs and national parliamentarians through reading rooms, while also engaging with them more regularly.
Commission responsibility focus
The Commission does not share a maximalist interpretation of transparency, whereby everything is – as a rule – disclosed.
During the TTIP negotiations, textual proposals tabled in negotiations were only gradually and partially released. Yet transparency demands are mostly directed at the negotiating team as whole. The Commission only released meeting lists and the correspondence of Commissioner Malmström. Final positions on individual chapters were not public – not least because this needed US permission as well.
Several NGOs also demanded that these provisions be applied across all other trade negotiations, and they saw little progress on that front.
The Commission does not attach transparency predominantly to participation, but to responsibility.
It holds that there is a legitimate need to keep aspects of trade negotiations confidential. In its view, some transparency towards the public is essential to increase trust by explaining ‘what is really going on’ and to ‘bust myths’ spread by opponents of EU trade policy. But too much transparency can be harmful for the EU’s negotiating position.
Furthermore, the Commission holds the view that it is mainly accountable to its principals: the Council, the European Parliament and national parliaments. If engagement and transparency is ramped up, these institutions should be the first beneficiaries.
These two different views reflect a seminal academic distinction between ‘delegation’ and ‘participation’ models of accountability in international politics. In a ‘delegation’ model, an organisation (such as the Commission) is accountable to those who have granted it a mandate (in the EU: the Council, the EP and national parliaments). Transparency and participation should first and foremost be directed to them. Extending managed transparency to the wider public can be instrumentally used to increase trust.
In a ‘participation model’, in contrast, organisations are accountable to those who bear the burden of the decisions that are taken. If contemporary trade policy impacts people’s daily lives, the people – directly or through civil society organisations that claim to represent them – should be able to see what is going on, and be able to influence the process. Therefore, there is a presupposition for openness, disclosure, and close participation.
This is why the Commission’s new transparency initiatives will be insufficient in the view of those who argue they should be given full insight and the ability to participate in trade decision-making.
The now proposed permanent trade advisory group replacing the TTIP advisory group institutionalises a mechanism that was already criticised as being a veil for transparency. Publishing draft mandates is conceived as a means to trigger more national parliamentary debate, in other words, by formal institutional stakeholders.
Not surprisingly, as a result, the latest transparency initiative was greeted by some NGOs as “fake transparency”.
Does this mean that all future trade deals will undergo the fate of TTIP, being politicised up to the point that it cannot move any further?
Not necessarily. While several civil society organizations will keep contesting the – in their view – fundamentally undemocratic and illegitimate trade policy-making process, the Commission now has the (discursive) tools in hand to fend off ‘secrecy’ claims with more self-esteem, having acted on transparency in TTIP and beyond.
Given that the legitimacy of policy process and output is in the eye of the beholder, it remains to be seen which claims will resonate more in the public debate.
The views expressed in columns published by Borderlex are those or their authors only.