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


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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