TTIP : The flaws of the European Union democracy revealed.

Alain-Patrick Umucyo By Alain-Patrick Umucyo, 29th Jan 2014 | Follow this author | RSS Feed | Short URL http://nut.bz/4081q_9z/
Posted in Wikinut>News>Politics

When comparing the procedures which are to lead to the biggest bilateral trade agreement ever negotiated, the weaknesses of the ever evolving European Union appear blatantly. They resound the fear of those who see in the prospective Transatlantic Trade and Investment Partnership a potential threat to the perfectible EU democracy.

I/ The extended competences of the European Commission


On 14 June 2013, the Council of the European Union mandated the European Commission to negotiate with the United States on the prospective TTIP.(1) The mandate itself was not published but the announcement of its adoption was supplemented with details about its main features and structure. Those details revealed that “The mandate agreed unanimously by member states consists of three parts”, one of them being “ the EU member states' decision authorising the Commission to negotiate, on their behalf, those provisions of the EU-US TTIP that fall outside the limits of EU competence”.(2)

This part appeared to infringe what has been seen as one of the improvements of the Lisbon Treaty : “the delimitation of competences between the Union and the Member States”, as explicitly provided by the article 207(6) TFEU.(3) Notably, the article 207 TFEU relates directly to the procedure required for the conclusion of such treaty as the TTIP.(4) It seems then all the more incomprehensible that the EU could have entered upon a procedure by transgressing the rules related. Moreover, if the required “delimitation of competences” has been indeed infringed then not only has the Union transgressed the rules laid down in the Treaty on the Functioning of the European Union but also those in the Treaty on the European Union. The TEU includes an Article 13(2) providing that “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.

II/ The worrying contradictions of the European Union


The TEU and the TFEU are the fundamental bodies of law of the EU. They have founded a construction from the Court of Justice of the European tending to delineate a constitutional architecture at the source of any EU legislation. The violation of their rules by the Union itself would amount to a State violating its Constitution, which would be quiet worrying from an organisation which imposes itself as a genuine defender of democracy in and out of its borders.

Even more worrying is that the access to the mandate delivered on 14 June 2014 is impossible,or at least very much difficult.(5) The arguable decision from the EU Member States “refers to the EU strategy in the on-going negotiation of this international agreement and contains indications on the division of tasks and reporting obligations on the EU side. Release of this information would reveal aspects of the EU's negotiating strategy to the negotiating partner. This would impede the proper conduct of the negotiations and weaken the position of the European Union in the framework of the negotiations.”(6) Thus expressed, the reasons for secrecy sound to be related to a situation of war rather than to a situation whose main purpose is to improve the condition of all parties, the EU, the US and their citizens. These reasons contrast with the assurance of Ignacio Garcia Bercero, chief EU negotiator for the TTIP. He stressed that “it’s very important to communicate as clearly as possible to our citizens, say what is the position that each one is taking in the negotiation, and that’s the reason why the European Union will have made an effort to make as many position papers public, where we indicate in each of the different negotiating areas which are the objectives that we are pursuing in the negotiation and our doors are always open to discuss with any interested stakeholder any issues which are a matter of concern.“(7)

III/ The difficulty of grounding accountability


Position papers are mere statements. They do not bind their authors. The arguable decision from EU states however has a legal significance based on which legal and maybe judicial accountability can be drawn. Without any access to this decision, this accountability seems far from realisable. That is not only due to a policy of secrecy but also to the finalistic purpose of the treaties. They tend to provide for a coherent legal system without giving much notice about how elements of this system are actually produced.

Regarding a treaty like the TTIP, the TFEU specifies clear rules for assuring that the negotiated treaty will comply with EU legislation. Article 207(3) para 2 gives to the Council and the Commission the responsibility “for ensuring that the agreements negotiated are compatible with internal Union policies and rules.” And article 218 enables “A Member State, the European Parliament, the Council or the Commission” to “obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.” Yet, the TFEU contains no precise provisions for guaranteeing that the procedure leading to the adoption of an international agreement complies with core values of the European Union, such as those laid down in article 2 TEU,(8) and more concretely with the separation of competences required by the article 207(6) TFEU which envisages no exception. This absence is to the detriment of the European Union citizens.

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SOURCES :

On the procedures of negotiations of the TTIP :
Alain-Patrick Umucyo, 'Négociations pour le TTIP : la procédure au sein de l’Union européenne' (AgoraVox, 16 August 2013)
&
Alain-Patrick Umucyo, 'TTIP : 2014, a decisive year for the United States' (Wikinut, 11 January 2014)
<https://bitly.com/bundles/alainpatrickumucyo/8> accessed 17 October 2014

(1) Council gives the green light to launch free-trade talks with the United States' (Home>Highlights>Foreign Affairs Council (FAC), Council of the European Union, 14 June 2013) <http://www.consilium.europa.eu/homepage/highlights/council-gives-the-green-light-to-launch-free-trade-talks-with-the-united-states?lang=en > accessed 08 January 2014

(2) Council gives the green light to launch free-trade talks with the United States' (Home>Highlights>Foreign Affairs Council (FAC), Council of the European Union, 14 June 2013) <http://www.consilium.europa.eu/homepage/highlights/council-gives-the-green-light-to-launch-free-trade-talks-with-the-united-states?lang=en > accessed 08 January 2014

(3) Article 207 TFEU : “6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.”
Consolidated versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union OJ C326/01

(4) Alain-Patrick Umucyo, '03. Negotiations EU - USA, procedure. (diagram)' <https://docs.google.com/drawings/d/1rwUJtpK3yTJGm4gQmSV77wV_eDHMrRSfBfP7SNQDT-c/edit > accessed 10 January 2014

(5) Email from the General Secretariat of the Council of the European Union to author (22 January 2014) <https://drive.google.com/file/d/0B7Fk_SxTc050ZkFwaVFRcl9uaUU/edit?usp=sharing> accessed 25 January 2014

(6) Email from the General Secretariat of the Council of the European Union to author (22 January 2014) <https://drive.google.com/file/d/0B7Fk_SxTc050ZkFwaVFRcl9uaUU/edit?usp=sharing> accessed 25 January 2014

(7) Transcript : Chief negotiators Dan Mullaney and Ignacio Garcia Bercero Hold a Press Conference Following the Third Round of Transatlantic Trade and Investment Partnership (TTIP) Talks, Department of State (Washington DC, 20 December 2013) <http://www.ustr.gov/about-us/press-office/press-releases/2013/December/TTIP-Third-Round-Press-Conference-transcript> accessed 25 January 2014

(8) Article 2 1st Sentence TEU : "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities."
Consolidated versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union OJ C326/01

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