Recent Stories

FFII

CETA: Who pulled the plug on the right to regulate?

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The European Commission published the text of the draft EU-Canada trade agreement (CETA), which includes an investor-to state dispute settlement (ISDS) section. According to an Inside U.S. Trade’s World Trade Online article Canada succeeded in “changing the language from the EU’s TTIP proposal in a way that sources on both sides of the debate agreed would provide less protection for governments against challenges by investors.” The article reports that U.S. Chamber of Commerce’s Sean Heather argued that the CETA changes to the right to regulate show that the Canadian government rejected the EU’s previous approach. However, an alternative explanation is possible. A few weeks earlier the commission published the text of the EU-Vietnam agreement.

FFII

EU commission goes into denial mode regarding effect ISDS on software patents

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Companies could use investor-to-state dispute settlement (ISDS) in trade agreements to challenge refusals to grant software patents, FFII’s Benjamin Henrion argued during the 24 February 2016 TTIP stakeholder’s presentations. Successful challenges could undermine the European Patent Convention’s exclusion of software, the recent US Supreme Court’s limits on patentability, and Congressional patent reform. Henrion noted that the SME where he worked had to fire ten software developers after a major customer was attacked by a patent troll and discontinued a project. US research shows that patent trolls cost defendant firms $29 billion per year in direct out-of-pocket costs; in aggregate, patent litigation destroys over $60 billion in firm wealth each year. In 2005 the European Parliament overwhelmingly rejected the software patents directive proposal.

FFII

Junge Tüftler: Internet Play for Safer Internet Day

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On occasion of the  Safer Internet Day, we perform an event where they coach children how the internet works while playing it. For detailed information and registration please visit the following site. This event is organized and performed by Junge Tüftler in cooperation with fragFINN.de, the FFII and the Mozilla Foundation. The participation is free of charge but we ask for a binding registration.

FFII

EU-Vietnam ISDS not conform European Parliament resolution

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The European Commission today published the negotiated text of the EU – Vietnam FTA. The investment and investor-to-state dispute settlement (ISDS) chapter is not conform the European Parliament 8 July 2015 resolution. ISDS gives foreign investors the right to challenge state decisions outside local courts. The draft FTA does not meet the conditions the European Parliament formulated in its resolution, paragraph 2 (d) (xv); it

– does not provide for independent professional judges as the proposal lacks various institutional safeguards for independence, such as fixed salary and prohibition of outside remuneration; [1]
– does not ensure that foreign investors will not benefit from greater rights than domestic investors; [2]
– is not subject to democratic principles and scrutiny, as the Parliament will not be able to change the rules later on; [3]
– undermines the jurisdiction of courts of the EU and of the Member States, as foreign investors can by-pass them;
– does not ensure that private interests cannot undermine public policy objectives. [4]

In a crucial aspect the proposal is worse than the current practice of the member states’ stand-alone investment treaties from which it is possible to withdraw: we can not expect the EU to withdraw from trade agreements.

FFII

Junge Tüftler Office Warming Party @ FFII Berlin

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Junge Tüftler is a society that coaches children digital literacy by using a constructionist approach. To extend our work we are happy about the possibility to share the FFII office space so that we will be able to offer more courses and events for kids in future. We wanna celebrate this with you and all our mentors. So please feel free to join our office warming party on thusday,  28.01.2016. For more information and reservation please click here.

FFII

Bernd Lange accepts perverse incentives in ISDS

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Bernd Lange, chair of the European Parliament international trade committee, has sent a letter to EU trade commissioner Cecilia Malmström regarding the EU commission’s investor-to-state dispute settlement (ISDS) reform proposal. His letter shows that he overlooks many deficiencies in the commission’s proposal, among them perverse incentives. The proposed system lacks integrity and would undermine our values. I will go through his letter line by line. “Dear Commissioner, dear Cecilia,

On the 8th of July 2015 the European Parliament adopted a resolution with the European Parliament’s position on the TTIP negotiations.

FFII

TPP: rigged ISDS

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New Zealand has published the text of the Trans-Pacific Partnership (TPP). Ongoing analysis, subject to updates:

ISDS

Investor-to-state dispute settlement (ISDS) places investment tribunals above states, above democracies. This places the development of law beyond democratic scrutiny. At a national level, parliaments can change laws that do not work out well. This is not possible at the supranational level.

Transparency

How the European Commission may solve the Trade Transparency gap

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Citizen enjoy a right of access to documents enshrined in the EU treaties. However, when they ask about documents from the ongoing trade negotiations (TTIP, TISA,…) access had usually been refused by the institutions. The reason for that unwillingness is the legal base of the public requests: EC/1049/2001. The EU sunshine law regulation EC/1049/2001 is from 2001 and does not:
– include European case law after 2001
– new rights under the Lisbon treaty
– transparency for trade procedures, even when they enter the regulatory domain

2008 a recast reform was launched. This reform was voted in Parliament but struck down in the Council under the Danish Presidency.

Democracy

CETA – Keine Erkenntnisse

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Aus einer Anfrage an die Bundesregierung geht hervor, dass Deutschland zwar von der Kommission gegenüber Drittstaaten vertreten wird, aber nicht ausreichend über die Gespräche informiert. Das verdeutlicht Nachbesserungsbedarf in der Administration von EU Kommissarin Malmström hinsichtlich Transparenz, auch gegenüber den Regierungen der Mitgliedstaaten. Sie präsentierte diese Tage eine “Neue Strategie”. Abgeordneter Harald Ebner (BÜNDNIS 90/ DIE GRÜNEN) Welche konkreten Themen wurden nach Kenntnis der Bundesregierung beim Treffen des EU-Canada Trade & Investment Subcommittee am 27. November 2014 unter den Tagesordnungspunkten 10 („GMO Import Authorizations“) und 12 („Food Labelling Issues“ inklusive Klonen) mit welchen Ergebnissen diskutiert?

FFII

EU commission ISDS proposal a threat to democracy and civil rights

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The commission has tabled its investor-to-state dispute settlement (ISDS) reform proposal for discussion with the United States and published it on 12 November 2015. Summary

This analysis concludes that the commission’s proposal would undermine democracy, civil rights, and the rule of law. The proposal contains neither exhaustion of local remedies, nor a wide margin of appreciation for states, lacks various institutional safeguards for judicial independence – leading to perverse incentives – , gives greater procedural rights to foreign investors, includes substantive rights open to broad interpretation, and contains a “right to regulate” that does not protect against unlimited backward looking damages including expected profits and interests. Unlimited damages and the threat of such damages have a chilling effect on policy makers, compromise the independence of officials, and could force a state to revise a regulation or decision as part of a settlement. The commission’s proposal would place investment tribunals above states, above democracies.

FFII

How Germany undermines data protection

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The German delegation to the Council puts the axe against the data protection regulation. The trick is a special new pseudonyme data proposal. This shows a document from the Germans that was published by Statewatch. Under specific circumstances further processing which leads to revealing (re)-identification of the data subject should be allowed if the controller demonstrates compelling legitimate grounds which override the interests or fundamental rights and freedoms of the data subject (Art.6 (5)). The controller shall consider all the determinants of risk and assess whether a threat to the data subject exists.

FFII

DO-FOSS: Why free software and open standards for the city of Dortmund

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We publish a German paper from the DO-FOSS initiative that advocates for free and open source software for the public sector in the city of Dortmund, Germany. Disclaimer: The FFII was not involved in the drafting of the document and is not affiliated with the group. Warum Freie Software und Offene Standards für die Stadt Dortmund? UM KOMMUNALE SELBSTVERWALTUNG IN DER DIGITALEN WELT ZU ERHALTEN

Gemeinden ist grundgesetzlich das Recht gewährleistet, alle Angelegenheiten der örtlichen Gemeinschaft selbstbestimmt zu regeln
[1]. Um Entscheidungsspielraum für diese Selbstbestimmung zu sichern, ist unabhängige Kommunikation eine Kernvoraussetzung.

Democracy

The H word

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The European Commission published a textual proposal for the TTIP talks that includes the H-Word. Previously the European Commission had argued that (legal) harmonisation was not among the objective of the agreement: “Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed.” We mocked this on the FFII ACTA blog. In the Commission’s tabled text proposal it reads:
When a regulatory exchange has been initiated pursuant to Article 9 with regard
to a planned or existing regulatory act at central level, a Party may propose to the
other Party a joint examination of possible means to promote regulatory
compatibility, including through the following methods:
a) Mutual recognition of equivalence of regulatory acts, in full or in part, based on evidence that the relevant regulatory acts achieve equivalent outcomes as regards the fulfilment of the public policy goals pursued by both Parties;
b) Harmonisation of regulatory acts, or of their essential elements, through:
i.Application of existing international instruments or, if relevant instruments do not exist, cooperation between the Parties to promote the development of a new international instrument;
ii. Approximation of rules and procedures on a bilateral basis or
c) Simplification of regulatory acts in line with shared legal or administrative
principles and guidelines.

FFII

Unified Patent Court a mistake of historic dimensions?

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The EU wants to create a Unified Patent Court (UPC). I will discuss some aspects of the UPC and make two more general remarks on (adjudicative) system design. The UPC proposal has a twist; it tries to minimise the role of the EU Court of Justice (CJEU). This may lead to an expansionist interpretation of patent law. According to Josef Drexl, director of the Max Planck Institute for Innovation and Competition, this could easily amount to a mistake of historic dimensions:

“The policy argument behind this is to concentrate patent law cases before highly specialized patent courts and to prevent, as far as possible, any general law court from controlling the specialized court.

EU

Eva Kaili raises questions about access to TTIP documents in the age of the Lisbon Treaty

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Eva Kaili (S&D) from Greece asks the European Commission (under rule 130):

The Transatlantic Trade and Investment Partnership and potential areas of conflict with the Lisbon Treaty

The Transatlantic Trade and Investment Partnership (hereinafter TTIP) is a comprehensive free trade and investment agreement, which is currently being negotiated — behind closed doors — between the European Union and the US. In particular, all TTIP negotiations are swathed in secrecy, since the Commission is imposing the most stringent restrictions on the more important documents. In response to great pressure from MEPs, the Commission has stated that Member States and selected MEPs — those who handle the relevant issues — may have some access to the EU negotiating documents, but only in designated reading (reading rooms), and the photocopying or photographing of documents will not be permitted. The Court of Justice has already issued two important decisions — on 26 June 2014 and 3 July 2014 — essentially criticising the lack of transparency and information in the negotiations. Under Article 218 of the EU Treaty (Treaty of Lisbon) and on the basis of the precautionary principle, will the Commission say:
(a) Is the procedure being adopted in this instance in accordance with Article 218 TEU?

FFII

EU Parliament EPP group in favour of ISDS

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The European People’s Party (EPP), the biggest group in the European Parliament, is in favour of investor-to-state dispute settlement (ISDS). I will discuss their position and conclude it creates three risks. First, it risks subjecting the EU to a corrupt adjudicative system. Second, it risks undermining the EU court’s exclusive jurisdiction over the definitive interpretation of EU law. Third, it risks crashing upcoming EU trade agreements.

FFII

Hello world!

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Welcome to our new WordPress design. Thanks for the support for setting it up to Andre Rebentisch and Alexander Klosch!

FFII

Seven things you should know about EU-Singapore ISDS

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In October 2014 the European Commission published the draft text of the EU-Singapore trade agreement (EUSFTA) investment chapter. It contains investment protection rules for foreign investors and the controversial investor-state dispute settlement (ISDS), which gives foreign investors special rights in conflicts with governments. Seven things you should know about this investment chapter:

1. The agreement creates a lock-in. Unlike most investment agreements ratified by European countries, it is not a stand-alone investment treaty, from which parties can withdraw.

FFII

EU liberals seem ready to sacrifice our democracy

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Marietje Schaake, the European Parliament’s liberal group’s (ALDE) spokesperson on the trade agreement with the US (TTIP) published a blog on investor-state arbitration (ISDS). I will discuss her arguments below; to avoid cherry picking, I will quote her whole blog (for the links and images see her blog). I conclude that a majority of the European Parliament liberal group seems ready to sacrifice the separation of powers, and democracy, for no good reason. As things stand now, the liberals won’t fight for our democracy. Schaake:

“ISDS – what’s going on?

FFII

FFII submission to Ombudsman consultation on openness in TTIP negotiations

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Foundation for a Free information Infrastructure (FFII) submission to the European Ombudsman public consultation in relation to the transparency of the Transatlantic Trade and Investment Partnership (TTIP) negotiations. The submission has a focus on the EU’s human rights obligations. The international human rights obligations (ICCPR and ICESCR) may be relevant for other countries as well, such as TPP countries. FFII submission: pdf, html

Events

Meshcon FashionTec Week 2014 in Berlin

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The first Meshcon FashionTec Week took place from October 10-15, 2014 in Berlin with the support of the FFII e.V. The event attracted 23 speakers from around the world and gathered hundreds of attendees from the technology and fashion community. The FFII invited software engineers, creative minds and fashion hackers to the MeshCon 14’ in Berlin. The technology week is organised in cooperation with the TU Berlin, BBW, Wikimedia and the Mozilla Community. The Meshcon is about local production, design and distribution of textiles in a way that reaps the full benefit of the digital dividend. The goal of the event was to explore the benefits of participatory production in the textile industry.

FFII

Who leaked about Juncker and Malmström fighting over ISDS?

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Last week the Dutch newspaper NRC revealed a fight between Juncker and Malmström over ISDS. The article (paywall) sketched the context: uninformed activists gaining influence. The article suggested Juncker without good reason giving in. As Juncker does not gain anything with this leak about the fight, I assume proponents of ISDS leaked, and had the ear of the reporter, so they could sketch the context. The newspaper did not give civil society a rebuttal: very bad journalism, endangering our democracy.

FFII

EU Parliament promises to better register its decisions

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In 2011 the FFII discovered that some European Parliament decisions regarding the ratification of the Anti-Counterfeiting Trade Agreement (ACTA) were not recorded in any known document. A hidden class of documents (“coordinators’ minutes”) seemed to exist, but the Parliament denied the existence. The FFII filed a complaint with the European Ombudsman. The ombudsman found a systemic failure regarding the listing of documents in the Parliament’s registry of documents. In response, the Parliament took measures to better comply with EU law.

FFII

11 October action day against TTIP, CETA and TISA

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This Saturday 11 October 2014, in hundreds of European cities, civil society organisations, unions and farmers will organise manifestations against EU trade agreements under negotiation. The manifestations regard the Trade and Investment Partnership (TTIP) with the US, the Comprehensive Economic and Trade Agreement (CETA) with Canada, and the Trade in Services Agreement (TISA) with many countries. The secret negotiations create serious risks for privacy, reform of copyright and patent law, labor rights and the environment, and may give companies excessive power in conflicts with states. See also the Statement of Concern on investor-to-state arbitration by over 110 scholars.

FFII

ISDS out?

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OpenDemocracy reports about the back and forth confusion during Commissioner hearings recently:

At 16:01 they [Tagesspiegel] publish an article on their website: Juncker will drop ISDS from TTIP, this is the policy of the incoming Commission. It becomes more an more likely that the controversial enforcement of TTIP and CETA with ISDS instruments would be resolved. This would enable the public to focus more on the substance of the envisaged agreements.