[Ip-health] EU's TTIP Anti-Transparency Rules laid out in DG-Trade letter to USTR

Claire Cassedy claire.cassedy at keionline.org
Tue Jul 1 12:05:52 PDT 2014


http://keionline.org/node/2033

EU's TTIP Anti-Transparency Rules laid out in DG-Trade letter to USTR

Submitted by Claire Cassedy [1] on 1. July 2014 - 3:11

Previously, KEI reported on the terms of reference (TOR) for the
confidentiality of the Transatlantic Trade and Investment Partnership
(TTIP) negotiating texts, as laid out in a letter by USTR to DG-Trade.
Although evidently publicly available, the EU counterpart of that letter
was not accessible through the FOIA process. Obtained through the EU
Regulation (EC) No. 1049/2001 regarding public access to European
Parliament, Council, and Commission documents, a colleague at the german
section of Attac has forwarded along the letter from EU Chief Negotiator
Ignacio Garcia-Bercero to US Chief Negotiator Dan Mullaney, outlining the
EU's TOR for the TTIP negotiating documents. The EU letter is available
here [2], while the link to our blog on the US TOR and the text of the US
TOR are available here [3].

Perhaps predictably, most of the EU letter mirrors its US counterpart. The
letter even makes claims to the importance of transparency to the EU before
declaring an exception for the negotiating texts of the TTIP. The EU TOR
also highlights the European equivalent to FOIA, Regulation (EC) No.
1049/2001 (mentioned above), and mentions the space in the regulation for
exceptions in this area. Article 4 of No. 1049/2001 allows for exceptions
in providing access to documents which are "applied in specific
circumstances when justified notably for the protection of public interest
as regards, for example, international relations." Interesting to note that
the public are denied access to information under the guise of the
'protection of public interest.' The US counterpart to that exception at
least claims 'national security' as the justification.

There are several differences in the TOR, however, which are notable. One
difference is paragraph (d) in which both the US and EU letters describe to
whom the negotiating documents will be made available. While the US letter
states that,

"(d) For the US side, this means that documents containing such information
may be provided only to (1) US government officials, and (2) persons
outside the US government who participate in its internal consultation
process and who have a need to review or be advised of the information in
these documents."

The EU letter provides for a wider description regarding who may have
access to the documents,

"d) On the EU side, documents related to the negotiations may be provided
only to (1) officials, or Members of the European Commission, Council of
the European Union, European Parliament, and officials of the EU Member
States, and (2) persons outside these EU institutions who are entitled to
be fully informed of the state of play of the negotiations."

Who then, is 'entitled to be fully informed of the state of play of the
negotiations'? Industry? The public? An argument could be made by both
sides.

The other notable difference is in paragraph (f) of the EU letter, which
has no counterpart in the US letter. This section reads,

"(f) I take this opportunity to inform you that the European Commission may
decide to make public certain documents that will reflect exclusively the
EU position on these negotiations, after consulting the US side. To the
extent that such documents have been shared with the US side as set out in
the previous paragraphs, we would not expect the US to hold them in
confidence as of the date of their publication."

While this does not throw open the door of transparency, paragraph (f) at
least provides the glimmer of hope that the EU will make documents
available more readily and will at least entertain public comments, such as
with the current investor-state dispute settlement (ISDS) consultation
process.

The text of the EU Confidentiality TOR letter follows below:


Brussels, 5 July 2013
LDC
L. Daniel Mullaney
Assistant United States Trade
Representative for Europe and the
Middle East
Chief US negotiator for TTIP

Subject: Arrangements on TTIP negotiating documents

Dear Mr. Mullaney:

In preparation for the initiation of negotiations on a Transatlantic Trade
and Investment Partnership (TTIP) Agreement, I would like to inform you of
the arrangements that the EU has in place for the protection of negotiating
documents, given the sensitive nature of their content. While the EU hold
dear to the principles of transparency, a certain level of discretion and
special care in handling these documents is in our view necessary in order
to allow mutual trust between negotiators and for each side to preserve
positions taken for tactical reasons against third countries with which we
are or could be negotiating in the future.

EU institutions much comply with Regulation 1049/2001 regarding public
access to European Parliament, Council and Commission documents under which
all documents of the institution of the EU are accessible to the public.
Article 4 of this regulation, however, sets out certain exceptions to the
general policy of providing access to documents, which are applied in
specific circumstances when justified notably for the protection of public
interest ias regards, for example, international relations. Following
discussion with the US side, in the case of the negotiations for a TTIP
Agreement:

a) All documents related to the negotiation or development of the TTIP
Agreement, including negotiating texts, proposals of each side,
accompanying explanatory material, discussion papers, emails related to the
substance of the negotiations, and other information exchanged in the
context of the negotiations, are provided and will be held in confidence,
in accordance with EU law and relevant procedures.

b) As regards the handling of the documents referred to above we consider
that, insofar as they are not classified within the meaning of that term in
the EU, such documents (which would be marked as “Limited”) must be held in
confidence, but can be normally be mailed, e-mailed, faxed, or discussed
over unsecured lines with the groups of people mentioned in paragraph (d)
and the US side. Persons in possession of these documents and store them in
a locked file cabinet or within a secured building; that is, the documents
do not need to be stored in safes. These documents can be created and
stored on computer systems that are not subject to special security
measures. However, depending on the sensitivity of their content, we may
choose to increase the level of protection of particular documents when
they are circulated on the EU side between the persons identified in
paragraph (d) below, notably by classifying them as “RESTREINT UE”, in
accordance with Commission rules on classification and handling of
classified information (Decision 2001/844) and apply more secure handling
requirements on our side.

c) Under these procedures, we will appropriately mark or, where
appropriate, classify the documenst in a manner that makes clear that the
documents are sensitive, must be held in confidne and handled according to
the rules and guidelines applicable to such documents.

d) On the EU side, documents related to the negotiations may be provided
only to (1) officials, or Members of the European Commission, Council of
the European Union, European Parliament, and officials of the EU Member
States, and (2) persons outside these EU institutions who are entitled to
be fully informed of the state of play of the negotiations.

e) Finally, when persons or groups other than those specified above, seek
access to documents described in paragraph (a), the exceptions to public
access set out in Article 4 of Regulation 1049/2001 apply as long as the
protection is justified on the basis of the content of a document, up to 30
years. While the application of any exception, including its continued
application over time, shall be assess on a case-by-case basis, depending
on the content of the documents, the European Commission when using the
exception for foreign relations will consult with the third-party, in this
case the United States, regarding release of information described in
paragraph (a) in order to assist it in coming to a view on the (continuing)
sensitivity of the document.

f) I take this opportunity to inform you that the European Commission may
decide to make public certain documents that will reflect exclusively the
EU position on these negotiations, after consulting the US side. To the
extent that such documents have been shared with the US side as set out in
the previous paragraphs, we would not expect the US to hold them in
confidence as of the date of their publication.

I would be grateful if you could inform us of the procedures to protect
sensitive information applicable to your side. The content of the present
letter will be shared with the other EU institutions and made public.

Sincerely,
Mr. Ignacio Garcia Bercero
Director, Neighboring Countries, USA and Canada
Directorate-General for Trade, European Commission
Chief EU negotiator for TTIP

Links:
[1] http://keionline.org/user/57723
[2]
http://keionline.org/sites/default/files/EU_Confidentiality_TOR_Letter.pdf
[3] http://keionline.org/node/2021



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