By Maryant Fernández Pérez

Secrecy in trade negotiations and the Investor-State Dispute Settlement (ISDS) have been the two most discussed topics of the year, especially in relation to the negotiations of the Transatlantic Trade and Investment Partnership (TTIP). It was not by chance that the European Commission received 149,399 responses to the ISDS public consultation. Neither was it a surprise that the EU and its Member States have launched a public relations campaign to “convince” people of the value of TTIP. The only way to reduce suspicion is to open the texts to public discussion not only on TTIP, but also on all trade and investment agreements.

TTIP negotiations address chapters on “intellectual property rights”, telecommunications and e-commerce, whose provisions may have the potential to affect the reforms on copyright, data protection and the telecommunications package, by locking in loopholes.

ACTA dealt with enforcement of “intellectual property rights”. It was democratically rejected two years ago. In TTIP, we have barely heard any discussions about the intellectual property rights chapter. In a Commission update on trade agreements, an official asserted that some discussions are not being put in writing to avoid leaks. In this respect, the EU-Canada trade agreement (CETA) has been seen as a model for TTIP. When looking at its text (which was also concluded behind doors), we see that some provisions of the “intellectual property rights” chapter are surprisingly similar to ACTA’s.

As regards to data protection and privacy, the United States has tabled similar proposals on data flows in both the TTIP and the Trade in Services Agreement (TiSA). When civil society raised concerns, the Commission repeatedly stated that data protection and privacy standards will not be lowered. Yet, the TiSA leak published by the Associated Whistleblowers press (AWP) on 17 December 2014 confirms the exact opposite.

However, transborder data flows are part of the EU Data Protection Directive (cf. Articles 25 and 26), whose reform is being discussed in the Council of the European Union. The Snowden revelations clearly show the inadequacy of privacy standards in the US. That is probably why the Parliament asked for the suspension of the “Safe Harbor Agreement”, which is a self-certification scheme that can be used to transfer data to the USA, in formal compliance with EU data protection rules.

Concerning the telecommunications chapter, it seems that there will be provisions regarding net neutrality (“access to and use of the internet”) in TTIP. What would the actual text say and what would it mean for the on-going discussions in both sides of the Atlantic? Very little is the likely answer, due to neither party having adopted a coherent position on the issue.

During the last “civil society” dialogue on TiSA, EDRi asked whether the Commission was going to wait for the reforms on data protection and the telecommunications package before adopting any position in that regard. The EU Chief negotiator on TiSA responded negatively.

In order to give EU citizens hope in the outcome and make them see the benefits of a trade agreement, the EU and the Member States need to take into account the public opinion.

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Leaked TiSA text on e-Commerce, data flows (17.12.2014):
https://data.awp.is/filtrala/2014/12/17/19.html

The Lobbyists’ Charter
http://lobbycharter.eu/

Report of the last round of the TTIP negotiations
http://trade.ec.europa.eu/doclib/docs/2014/october/tradoc_152859.pdf

Minutes of the “Civil Society” Dialogue on TiSA (10.11.2014)
http://trade.ec.europa.eu/doclib/docs/2014/november/tradoc_152871.pdf

ENDitorial: Transparency in TTIP? Yes, but in practice, please! (19.11.2014)
https://edri.org/enditorial-transparency-ttip/

Committee on International Trade, Exchange of views with Cecilia Malmström (3.12.2014)
http://www.europarl.europa.eu/ep-live/en/committees/video?event=20141203-1500-COMMITTEE-INTA&ms=1417618500

TTIP elephants hiding behind TTIP (10.12.2014)
http://www.euractiv.com/sections/ttip-and-arbitration-clause/ttip-elephants-hiding-behind-isds-310682