EU Ombudsman Seeks More Trade Talk Transparency

8 January 2015

The European Commission on Jan. 7 issued more documents concerning the Transatlantic Trade and Investment Partnership (TTIP) negotiations with the United States, a move welcomed by the European Ombudsman, who said even more should be disclosed.

Ombudsman Emily O’Reilly issued an extensive report that includes numerous recommendations for the Commission, challenging the EC not to uncritically accept US demands for nondisclosure.

The Commission published the legal language and binding rules it is seeking in some areas of the talks. The eight texts cover competition, food safety and animal and plant health, customs issues, technical barriers to trade, and small and medium-sized enterprises. “Government-to-government dispute settlement, which is different from the controversial investor-state dispute settlement clause, is also covered,” reported euractiv.com.

European Trade Commissioner Cecilia Malmström told reporters in Brussels that more documents would be published after the next round of talks in February. The texts are accompanied with reader’s guides to explain them. “It’s important that everyone can see and understand what we’re proposing in TTIP and – just as importantly – what we’re not,” Malmström said.

But certain documents will not be released, however.  “Some issues and I was very clear about this in November already, cannot be published on market access, quotas and tariffs of course. These are very sensitive issues that you need to have a certain secrecy in the negotiation,” she said.

Ombudsman Urges More Transparency

The Ombudsman’s proposals for additional transparency were based on an inquiry and consultation she began in July that attracted substantial public input.

“The Commission has made real efforts to make the TTIP negotiations more transparent,” she said, noting in the report various improvements.

O’Reilly concluded that the Commission “can legitimately keep confidential certain information and documents, at least during certain stages of the negotiations. However, in order to uphold the legitimacy of the negotiating process, any policy of non-disclosure must be duly justified.”

She stressed, “If it chooses to refuse to grant public access to TTIP documents, the Commission must put forward specific arguments, based on the content of the documents and the negotiating context, with particular emphasis on the timing of disclosure.”

Addressing the possible release of US documents or shared documents, O’Reilly said exception to public access relating to international relations “does not apply simply because the subject matter of a document concerns international relations.” She continued, “Rather, it is necessary to show, based on the content of a requested document, that its disclosure would undermine the public interest as regards international relations.”

This theme is further developed. The report says, “… the mere fact of US displeasure that a document would be released, is not sufficient to activate the exception in relation to undermining the public interest as regards international relations.

Using boldface lettering to emphasize one conclusion, O’Reilly’s report says:

Accordingly, it is vital that the Commission inform the US of the importance of making, in particular, common negotiating texts available to the EU public before the TTIP agreement is finalised. The Commission should also inform the US of the need to justify any request by them not to disclose a given document. The Commission needs to be convinced by this reasoning.

Proactive Disclosure Recommended

“Early publication of common negotiating texts would allow for timely feedback to negotiators in relation to sections of the agreement that pose particular problems,” according to the report. “The Ombudsman assumes that it is preferable to learn of such problems sooner rather than later, so that they can be tackled effectively.”

The report stresses:

The Commission should carry out an assessment as regards whether a TTIP document can be made public as soon as the document in question has been finalised internally and at regular and pre-determined intervals thereafter (including, but not limited to, when the document is tabled in the negotiations). If no exception applies, the document in question should be published proactively by the Commission. If a document cannot be made public proactively, the document reference (and, if possible, its title) should be made public, along with an explanation as to why the document cannot be made available.

Among other more specific suggestions, O’Reilly’s report says the Commission “should publish on its website the many TTIP documents it has already released in response to access to documents requests.”

Disclosure of Meetings Urged

The Ombudsman also made a number of recommendations to enhance public participation.

Among these is a call to disclose meetings that government officials have with outside persons about the negotiations and publish all outside submissions.

The Ombudsman said the meeting disclosure obligations should extend to the levels of Commission directors, heads of units, and negotiators. “EU officials involved in the TTIP negotiations should only meet with interest representatives who are registered in the Transparency Register,” she said.

Ten Concluding Points

The Ombudsman summarized her report in 10 points:

  1. Inform the US of the importance of making, in particular, common negotiating texts available to the EU public before the TTIP agreement is finalised. The Commission should also inform the US of the need to justify any request by them not to disclose a given document. The Commission needs to be convinced by this reasoning.
  2. Carry out an assessment as regards whether a TTIP document can be made public as soon as the document in question has been finalised internally and at regular and pre-determined intervals thereafter (including, but not limited to, when the document is tabled in the negotiations). If no exception applies, the document in question should be published proactively by the Commission. If a document cannot be made public proactively, the document reference (and, if possible, its title) should be made public, along with an explanation as to why the document cannot be made available.
  3. Ensure that the list of TTIP documents to be made available on its dedicated website on trade policy is comprehensive.
  4. Publish on its website the many TTIP documents it has already released in response to access to documents requests.
  5. Take into account the relevant suggestions outlined in the ‘Public participation’ section of the Ombudsman’s public consultation report.
  6. Extend the transparency obligations in relation to meetings with professional organisations or self-employed individuals, in the context of TTIP, to the levels of Director, Head of Unit and negotiator. This should include the names of all those involved in such meetings.
  7. Proactively publish meeting agendas and records of meetings it holds on TTIP with business organisations, lobby groups or NGOs.
  8. Examine how to extend, to levels below the level of Commissioner, the obligations (including in relation to the Transparency Register) aimed at ensuring an appropriate balance and representativeness in its meetings with professional organisations or self-employed individuals on TTIP. These obligations might, for example, be extended to the levels of Director, Head of Unit and negotiator.
  9. Confirm that all submissions from stakeholders made to it in the context of TTIP will be published unless the sender gives good reasons for confidentiality and provides a non-confidential summary for publication.
  10. Ensure that documents that are released to certain third party stakeholders are released to everyone, thereby ensuring that all citizens are treated equally.
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ABOUT IFTI WATCH

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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