TTIP talks: despite the PR, still under a cloak of secrecy

Back in November 2014, with growing controversy over the EU-US trade deal TTIP (Transatlantic Trade and Investment Partnership), the European Commission pledged a “fresh start”. Trade Commissioner Cecilia Malmström committed to grant more access to negotiation texts and for the public to have “accurate and full information” about TTIP. Details about Commission meetings with lobbyists on TTIP were also supposed to be published as part of a wider transparency initiative – “because in fact we have nothing to hide”, as Commission President Jean-Claude Juncker put it.

Since then, Malmström has toured Europe to explain why TTIP is good. The Commission has published dozens of TTIP-related papers. Business lobby groups have praised “the most transparent trade negotiations in history.” Even some EU member state officials and MEPs are now claiming that “there is nothing secret” about TTIP as “tens of thousands of documents on the European Commission website are available”.

So, are the TTIP talks now truly transparent? Are TTIP opponents' criticism of secrecy in the negotiations overblown?

Well, no. Learn why with Corporate Europe Observatory’s top-5 TTIP secrecy indicators.

Secrecy indicator #1: The really crucial TTIP texts will remain hidden from the public

In the communication on transparency in the TTIP negotiations, Trade Commissioner Malmström bluntly stated that there is “no intention to publish any US documents or common negotiating documents without the explicit agreement of the US”. But as the Commission told the European Ombudsman, “the US have explicitly asked for the EU not to release documents prepared by them or ‘consolidated texts’ containing texts emanating from them.”

In plain language this means: the draft text of the TTIP agreement will remain hidden from the public until negotiations are over. Citizens, journalists, scientists, and others who might provide meaningful input into the negotiations will not be able to see the relevant draft chapter on, lets say chemicals. Nor will they see anything that the US wants from the EU and its member states – such as opening the EU’s higher education market, a priority for US businesses in the sector.

But it is the consolidated negotiation text – basically, the draft agreement – that is the crux of TTIP. In the words of US-based NGO Knowledge Ecology: “Without the text being publicly made available, it is almost impossible to provide appropriate feedback for the very proposals that will affect the general public the most.… The precise working of the provisions, references to other documents or international instruments, and cross-references throughout the text are vitally important to fully understanding the impacts of the agreement as a whole.” No amount of other TTIP-related papers published online can be a substitute for releasing the draft text.

How anyone can seriously claim that there is nothing secret in the TTIP negotiations while the most important information is withheld from the public, frankly, is a mystery.

Secrecy indicator #2: The EU position on some sensitive TTIP issues will remain secret

In the communication on TTIP and transparency, Trade Commissioner Malmström stated that “the EU market opening offers on tariffs, services, investment and procurement should not, in principle, be made public either, as they are the essence of the confidential part of the negotiations.”

In other words: only when TTIP is finalised will citizens know if the EU has given in to potential US demands such as opening up its higher education market. Until then, health advocates won’t be able to check if the EU protects public health systems across the EU, as it has claimed. Neither will we know what the EU signs up to in TTIP when it comes to the sourcing of products and services by state and local governments. All this is considered “essence of the confidential part of the negotiations” by the Commission and will only be released when the deal is done.

How can Commissioner Malmström, in her infamous Top 10 myths about TTIP, claim that the EU is “publishing every proposal that we give our American counterparts” while the EU’s offers in key negotiation areas are hidden from the gaze of its own citizens?

Secrecy indicator #3: Member states’ access to the most important TTIP texts is limited

When it comes to US input papers and draft TTIP chapters (consolidated texts) – that is, the heart of TTIP – EU member states have less access than in other EU trade talks, even though TTIP will influence regulatory policies significantly more than any other trade deal in Europe's history. The draft TTIP chapters are neither sent to them electronically nor stored in a secure database, but can only be accessed in confidential reading rooms. US input papers into the TTIP process cannot be accessed by member states at all.

In practice this means: government officials will not be able to develop a detailed TTIP-analysis together with experts and colleagues. They will not be able to fully inform their parliaments and the public. Because officials are not allowed to talk about what they see in the reading room.

In EU capitals, reading rooms will be located in US embassies. According to US guidelines sent to the EU in December 2014, member state officials will have access “during two designated days each week, ideally Mondays and Wednesdays, by appointment only.” Moreover, “Appointments will be limited to two hours” and visitors “will be monitored by U.S. embassy personnel” in the room. They will sign “the obligation not to disclose the contents of documents” and will only “be allowed to bring a pen or pencil and paper with them to take limited notes.” No wonder that EU member states' officials coming together in the EU’s Trade Policy Committee have repeatedly lambasted the reading room as “unacceptable”, according to internal minutes seen by Corporate Europe Observatory.

An official who has been involved in the EU’s trade policy committee for many years and who spoke to Corporate Europe Observatory on the basis of confidentiality called the reading room arrangement both “impertinent” and “absurd”. It showed how all the talk about transparency in the TTIP negotiations was nothing but “window-dressing to sedate an increasingly concerned public”.

Remarkably, the official stressed that the Commission already began limiting member states’ access to trade texts before TTIP. “It all started with the EU-Canada talks” (CETA), the official told CEO. “Suddenly, we didn’t receive that many texts anymore. And then we were confronted with the final CETA agreement and had only a few weeks to provide final feedback.” According to the official, the Commission’s approach on TTIP and CETA is “diametrically opposed” to previous trade talks where EU member states were much better informed. Other member state officials also told CEO off the record that, on key developments in the EU’s trade talks, they are regularly kept in the dark by the Commission. This suggests that, while the Commission keeps blaming the US for the ongoing secrecy in the TTIP talks, it might be just as much of a barrier to transparency.

How EU governments can publicly defend TTIP as fully transparent while their own access to information and ability to inform and consult their people is severely curtailed? Another mystery.

Secrecy indicator #4: MEPs’ access to the most important TTIP texts is limited

Since November 2014, the Commission has made more TTIP-related documents available to more MEPs. But legislators’ access to the essence of TTIP – the draft chapters or consolidated texts – is extremely limited: they can only be accessed in special reading rooms and by a small number of MEPs and staff (by whom exactly is still being discussed – at the end of 2014, around 30 MEPs had access). US input papers into the TTIP process cannot be accessed by the Parliament at all.

This means that MEPs will not be able to scrutinise the heart of the TTIP together with experts, colleagues and their constituents. They will not be able to meaningfully debate and question the texts. They will not be able to share the information with journalists. Because sharing the contents of what they see in the reading room is strictly forbidden.

MEPs from the Left group have organised a protest against the reading room arrangement. British Green MEP Molly Scott Cato complained that she felt treated like a spy when signing the 14-pages confidentiality statement. Ernest Urtasun from the Spanish Greens criticised that he wasn’t even allowed to make handwritten notes,i had only two hours time and would have needed an expert at his side to understand the texts. “We are parliamentarians elected to represent and inform citizens. And for something as essential as an international treaty, they treat us like criminals or spies”, he said. Finish Green MEP Heidi Hautala has even questioned that the reading room is in line with the EU Treaties which require Parliament’s full information at all stages of trade negotiations.

“Prior to the visit I had to receive training on confidentiality procedures by Parliament’s classified information unit. I was warned that Commission officials had even been sentenced to prison for breaching confidentiality. I suppose that was needed for a chilling effect.”

MEP Heidi Hautala after her first visit to the reading room

What use is access to TTIP draft texts for a few handful of MEPs if they cannot properly scrutinise and debate the contents? What if most MEPs working on issues like agriculture, data protection and chemicals will not see the consolidated negotiation texts?

Secrecy indicator #5: The EU continues to hide its contacts with business lobbyists on trade policy

As part of the Commission’s transparency initiative from November 2014, Commissioner Malmström, her Cabinet and the trade department’s Director General publish lists of their meetings with lobbyists (see here, here and here). Emails and letters to and from Malmström can be found in a searchable registry. These are laudable steps in the direction of more lobby transparency. But they reveal only the tip of the lobbying iceberg.

Neither the EU’s chief negotiator for TTIP nor the other 36 officials leading on the different areas of the talks are covered by the lobby disclosure rules. But they are likely to be the main targets of lobbyists. This is why the European Ombudsman, in its inquiry on transparency and TTIP, has asked the Commission to consider extending the lobby transparency obligations to negotiators. But the Commission blankly rejected this (as it “does not consider for the time being any further extension” of the obligations).

Reports about the lobby meetings held by the Commission are also absent from its homepage. So, while we know that Commissioner Malmström recently met the International Chamber of Commerce, the Transatlantic Business Council, the European Roundtable of Industrialists, and other corporate lobby heavyweights on TTIP behind closed doors, we don’t know what they discussed. Again, the Ombudsman has suggested the Commission should address this shortcoming and “proactively publish meeting agendas and records of meetings”. But again, the Commission has rejected the idea arguing that the “appropriate balance” between “the needs of transparency and accountability…[and] the need to minimise any administrative burden… does not require the publication of the agendas and records of such meetings.”

The only other tool that citizens can use to find out who influenced the EU’s trade talks – access-to-information requests – is constantly undermined by the Commission. Responses to such requests are regularly delayed for months. Once there is a response, reports about meetings with business lobby groups on EU trade negotiations are often heavily censored. That practice has not changed an inch under Malmström.

One telling example is a freedom of information request which Corporate Europe Observatory sent in July 2014, to get an overview of the Commission’s contacts with industry in the context of the EU’s investment negotiations, including with the US. Nearly ten months after the request was sent, there is still no response – notwithstanding different reassurances from the Commission that the request “is being finalised” (4 November), we will “receive a reply in the first half of December (27 November), we “should receive a reply by 16 January (19 December), “we hope to send you a reply by the end of the month” (16 January 2015), “I expect it to take another week” (9 March) and “your file is one of the priorities... I hope you will receive it by next week” (25 March).

Some of the meeting reports that the Commission does release under such requests are heavily censored. The Commission has either ‘whitened’ or ‘blackened’ the parts it wants to keep from public scrutiny like in the example of the minutes of a meeting of Malström’s Cabinet with Goldman Sachs on 17 December 2014.

So, while the European Commission claims that it has “nothing to hide” (Jean-Claude Juncker) when it comes to its contacts with lobbyists, it continues to cover up how it teams up with big business to develop its positions for the trade negotiations such as TTIP.

What are you hiding?

So, have the TTIP talks become transparent since Malmström took office six months ago? Is the criticism of the secrecy of the negotiations largely overdone by the critics?

Sadly, no. Despite the Commission’s propaganda about openness, and despite piles of PR papers that it has dumped on its website, the most important information about TTIP will remain hidden from citizens and the majority of MEPs until the end of the negotiations. The few chosen MEPs and member state officials who do have access to this information have less than in other EU trade talks, where they do receive it electronically. And most lobbying around TTIP remains as hidden as it was before Malmström.

So, one of the most thorny questions about TTIP remains as valid as it was at the start of the negotiations two years ago: What are you hiding? And if it is so good for all of us, why are you hiding it?