EU Ombudsman Presses for Trade Talk Transparency

31 July 2014

European Ombudsman Emily O’Reilly July 31 said the Council of the European Union should publish the EU negotiating directives for the ongoing Transatlantic Trade and Investment Partnership (TTIP) negotiations with the United States.

In her letter to the Council, she raises doubts, based on a leaked document, that the directives should be kept secret. Commenting that the document is very general, she writes that “it is not immediately apparent how its disclosure would undermine the protection of any of the public or private interests provided for in Article 4 of Regulation 1049/2001.”

“I hope that the Council will find these reflections useful if it receives an application for public access to the negotiating directives,” and encourages proactive publication. The ombudsman asks for a reply by Sept. 30.

Recommendations Made

She also proposed in a letter to the European Commission a range of practical measures to enable timely public access to TTIP documents, and to details of meetings with stakeholders [footnotes deleted].

  1. What learning has the Commission achieved from the access to documents requests it has dealt with up to now in relation to TTIP? I would make the following suggestions in this regard:

(i) The Commission could consider making available on its website the many documents it has now released in response to the access to documents requests it has dealt with in relation to TTIP.

(ii) The Commission could consider — for the remainder of the negotiations and to the extent possible — establishing a public register of TTIP documents held by it, in line with Article 11 of Regulation 1049/2001. Such a register could contain a link to the actual document, where possible, thereby fully exploiting the possibility of proactively making documents available. While the Commission may, in line with the case-law, be justified in refusing access to many of the documents at this stage of the negotiations, the public should, to make their fundamental right of public access to documents effective, be in a position to know what documents there are. One might also entertain the hope that such an approach would encourage applicants to file more targeted access to documents requests, rather than the broad and extensive requests they are currently filing. It would be in the interests of good administration for the Commission to maintain such a register, rather than reacting to each request by trying to identify the documents in question.

If the Commission foresees practical obstacles in establishing such a register, it would be useful if it could identify them.

(iii) The Commission could consider inviting third parties, such as business organisations and interest groups, who send documents to it in relation to TTIP, to also submit non-confidential versions of those documents that could be made publicly available. The public could thus immediately access such non-confidential versions, notwithstanding the right to request public access to the full version.

  1. Could the Commission explain whether it has a policy of sharing certain negotiating documents selectively with privileged stakeholders— beyond the formal TTIP Advisory Group — whom it considers can play a role in shaping the EU’s negotiating position on certain subjects? I would make the following comments in this regard:

(i) The Commission could consider — for the remainder of the negotiations and to the extent possible — establishing and publishing online lists of meetings it holds with stakeholders  relating to TTIP, as well as the related documents.

(ii) The Commission could consider reinforcing the measures it has taken to effectively ensure that confidential TTIP documents, which should not be made public, are indeed not disclosed to any third party. I am aware of the Commission’s letter, dated 5 July 2013, in which it outlines a range of relevant measures. Please could the Commission explain the experience gained so far in applying these measures and whether, in light of that experience, it is considering additional measures?

Investigation Opened

In addition, she has opened investigations involving both institutions “to help ensure that the Council and Commission establish a more proactive approach to the transparency of these negotiations.”

O’Reilly explained:

The EU institutions have made a considerable effort to promote transparency and public participation concerning TTIP. I agree that not all negotiating documents can be published at this stage, there needs to be room to negotiate. However, concerns have been raised about key documents not being disclosed, about delays, and about the alleged granting of privileged access to TTIP documents to certain stakeholders. Given the significant public interest and the potential impact of TTIP on the lives of citizens, I am urging both these EU institutions to step up their proactive transparency policy.

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Filed under: IFTI Watch

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In this column, Washington, D.C.-based journalist Toby J. McIntosh reports on the latest developments in information disclosure in International Financial and Trade Institutions (IFTI).
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