The European Commission opened up part of its negotiations with the United States on a transatlantic trade and investment agreement, but the EU Ombudsman judged the new openness good, though not good enough. The Transatlantic Trade and Investment Partnership (TTIP) aimed to create a single market and a level playing field for investment on both sides of the Atlantic.
A new portal, with gaps
The most visible result was an updated website that made a complicated subject easier to follow. The portal carried three kinds of documents: factsheets, short and accessible summaries of the different negotiating areas; position papers, fuller explanations of what the EU hoped to achieve; and textual proposals, draft language put on the negotiating table.
Notably absent were the corresponding American positions and proposals, along with any consolidated text showing what the two sides had already agreed in each area.
"The US does not allow"
The Commission said it could not reveal American positions or the common negotiating text because of resistance from Washington. Its chief TTIP negotiator, Ignacio Garcia Beneco, explained in a telephone interview that on some issues, such as small and medium-sized enterprises, both sides had published proposals, but that consolidated texts would be shared with member states and the European Parliament without being published — something, he said, the US did not allow.
Referring to ACTA and the MAI, two earlier failed attempts to conclude trade and investment agreements, he argued that TTIP offered "maximum transparency possible" and that he did not think there had ever been bilateral negotiations quite like it.
The Ombudsman is not convinced
The EU Ombudsman, Emily O'Reilly, was less impressed. On the same day the new transparency was announced, she issued a statement acknowledging the Commission's real efforts and its occasional need to speak with the US confidentially, but insisting that US resistance to publishing certain documents was not, in itself, enough to keep them from the European public. Exceptions to citizens' fundamental right of access, she said, had to be well-founded and fully justified in every case.
In short, the Commission could not hide behind Washington by default. Its office added that the public would want to see the consolidated negotiating text, with both the EU and US positions, and called for greater transparency before the talks concluded.
Ten suggestions and a missing register
Drawing on an own-initiative inquiry launched in July 2014, O'Reilly put forward ten proposals to improve transparency. Among them:
- a public register of all TTIP documents, public and non-public, including agendas and minutes of meetings with lobbyists, so that citizens at least know the documents exist and can request access;
- a rule that EU officials — including Commission directors, heads of unit and negotiators — should only meet interest representatives listed in the Transparency Register;
- an assurance that documents released to some third-party stakeholders are released to everyone, so that all citizens are treated equally.
Unequal access and a wider complaint
The third point echoed a concern raised by Corporate Europe Observatory, a Brussels-based research and campaign group. In 2010 it had taken the Commission to court over documents from EU–India trade talks that were shared with industry representatives while being formally withheld from NGOs. The General Court ruled for the Commission in July 2013; the case was appealed to the Court of Justice, where it was listed as in progress.
Separately, five organisations — Corporate Europe Observatory, Friends of the Earth, ClientEarth, the European Federation of Journalists and the European Environmental Bureau — complained to the Ombudsman about maladministration at the Commission over access to TTIP information, citing poorly reasoned refusals, late replies, a failure to consider partial access, and the continued absence of a public register. A search of the official register for documents with "TTIP" in the title returned a single result for 2015. General guidance on exercising these access rights is set out in the guide on how to use European freedom-of-information rules, and a related dispute over the Council's own transparency is described in Council obstructs ruling on transparency.
Frequently asked questions
What was TTIP?
TTIP, the Transatlantic Trade and Investment Partnership, was a proposed EU–US agreement intended to create a single market and a level playing field for investment across the Atlantic.
Why couldn't the EU publish all the documents?
The Commission said the United States would not permit publication of consolidated negotiating texts and certain American positions, so it shared them only with member states and the European Parliament.
What did the Ombudsman recommend?
Emily O'Reilly made ten recommendations, including a public register of all TTIP documents, restricting official meetings to registered interest representatives, and releasing documents to all stakeholders equally.