By Ana Ollo

In 2013, the European Commission decided to subject the draft Trade in Services Agreement (TiSA) to a Trade Sustainability Impact Assessment (SIA) in support of the negotiations. The Final Report, which was published in July 2017, fails to address several key fundamental rights concerns.

The report was conducted by the consultancy Ecorys and the Centre for Economic Policy Research (CEPR). The aim was to evaluate how TiSA’s provisions under negotiation could affect economic, social and human rights, as well as environmental issues, in the EU and in other TiSA parties and selected third countries.

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The report went through various review processes among stakeholders, to which EDRi responded in three occasions. The draft that preceded the final Report was published in May 2017. In June 2017, EDRi submitted comments regarding both the draft and its Annexes.

We welcome certain parts of the final report. It clearly says that there is a lack of evidence of meaningful barriers to e-commerce. In fact, it states that barriers to e-commerce identified by industry groups “are not necessarily the true barriers to e-commerce”. In addition, the report makes a distinction “between the true underlying barriers and the barriers that are reported” by industry, industry associations or individual stakeholders. It argues that “in the absence of robust evidence on policy impact and effectiveness […] it is tempting to rely on the input and suggestions of interest groups and stakeholders”, which leads to “the usual risk of being beholden to special interests or to be lost in a mosaic of different opinions, concerns and suggestions”.

Despite these important recognitions, the report still has at least three major problems:

First, the analysis overlooked several key human rights concerns. Freedom of expression and opinion was disregarded, despite its relevance in the context of TiSA, especially for potential provisions on intermediary liability and net neutrality proposed by some TiSA countries. To address these points, we suggested including an impact assessment of the lack of human rights commitments by TiSA parties.

Secondly, the report refers to data protection and privacy as “issues”, rather than fundamental rights that must be respected. Indeed, the failure to protect them constitutes a barrier to trade and not the opposite. In our comments, we pointed out that both the European Commission and the European Parliament have stated on several occasions that such rights cannot be subject to negotiations in trade agreements, and that this needs to be taken into account. Furthermore, we highlighted that the Final Report should not assess the data protection situation only from an EU perspective, as the different TiSA parties have a variety of commitments in this regard.

Thirdly, the report includes contradictions with regard to data flows. While it acknowledges the lack of evidence of the existence of meaningful barriers to e-commerce, it states in its human rights assessment that “the issue of data flows […] is particularly relevant”, without indicating what it may be relevant to. In the same vein, the report does not present evidence of the ostensible problems related to data flows, while it also says that “limitations to the free flow of data” are “a key concern for e-commerce”. Finally, it identifies the movement of people as the biggest trade barrier for computer services and telecommunication, but then states that “the core issue” is that of the free flow of data. The report warns about the risks of lacking robust evidence, whereas in this matter it is clear that such problem affected the assessment.

Despite all the concerns highlighted on several occasions, when the final Report was published, we learned that almost all of our suggestions and remarks had been disregarded. This is regrettable, as an independent academic study by the University of Amsterdam “Trade and Privacy: Complicated Bedfellows? How to achieve Data Protection-Proof Free Trade Agreements” (Irion, K., S. Yakovleva, and M. Bartl, 2016), that is even cited in the Final Report, shows that the EU has homework to do to bring trade agreements in line with EU law.

EDRi’s response to the Trade SIA consultation (02.06.2017)
https://edri.org/files/consultations/tsia_tisa_draftfinalreport_edricomments_20170602.pdf

EDRi’s input to the Draft Interim Technical Report “Trade SIA in support of negotiations on a plurilateral Trade in Services Agreement (TiSA)” (27.01.2017)
https://edri.org/files/TiSA/ecorysdraftinterimreport_edriinput_20170127.pdf

EDRi’s response to the Ecorys Survey on TiSA commissioned by the European Commission (15.03.2016)
https://edri.org/files/TiSA/TiSA_ecoryssurvey_EDRiresponse.pdf

EDRi’s position paper on TiSA (01.2016)
https://edri.org/files/TiSA_Position_Jan2016e.pdf

Documents regarding TiSA’s Trade Sustainability Impact Assessment since 2013
http://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/sustainability-impact-assessments/#study-geo-19

Trade Sustainability Impact Assessment – Final Report (07.2017)
www.trade-sia.com/tisa/wp-content/uploads/sites/7/2014/02/TiSA-Final-Report.pdf

Trade Sustainability Impact Assessment – Annexes to the Final Report (07.2017)
www.trade-sia.com/tisa/wp-content/uploads/sites/7/2014/02/TiSA-Final-Report-Annexes.pdf

(Contribution by Ana Ollo, EDRi intern)

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