Transatlantic Partnership requires open democratic debate

Political institutions beyond the state considerably impact our lives, although we may be at first less aware of their importance thanks to their distance.

Yet even a most uninterested EU citizen has become aware of the impact of the EU, the European Central Bank (ECB) or the International Monetary Fund (IMF) upon national budgets or national banks.

The Transatlantic Partnership (TP) poses fundamental politico-legal questions with potentially far reaching implications for our future. What is being created, wittingly or otherwise? Who controls it? Who adjudicates its disputes? What are the democratic credentials of such an entity?

Evolving over time

The recent report of the EU-US High Level Working Group on Jobs and Growth, forming the key thinking behind the Partnership, gave some idea of the thinking behind it.

"Such an agreement should be designed to evolve over time – i.e., substantially eliminate existing barriers to trade and investment, while establishing mechanisms that enable a further deepening of economic integration, ... the two sides will need to be creative, flexible, and open-minded in developing and negotiating solutions that respond to the specific characteristics of the transatlantic economic relationship."

We learn from this that the TP is envisaged to "evolve over time," which suggest we shall see a body, an institution, assigned the tasks of harmonization and elimination of barriers.

Experience shows that such institutions are zealous in pursuing their objective of trade liberalisation, and expand their powers over time. This experience renders even more salient the question of how ‘creative' the institutional design of the TP will be.

Will it be an executive-dominated institution, able to commit the EU and its citizens to acts, rules or policies, without meaningful democratic oversight?

Routine international law agreement

The TP envisages the renegotiation of many EU rules, raising the question of whether this is truly a conventional international agreement for the EU.

The vast corpus of rules which have been hard fought within the EU, with the involvement of the EU democratic institutions and a nascent public sphere, look set to be irreparably renegotiated and/ or reduced in the Transatlantic Partnership.

EU citizens have much to lose from the renegotiation of EU rules within a transatlantic compromise. The US has more permissive regulatory standards in environment, health and food standards (GMOs, hormonally treated meat, labeling).

The US has in the past pushed through undesirable standards - such as the far-reaching agreement on gathering the personal data of air passengers,

On the other hand, it was the EU's democratic institutions - the European Parliament most notably - which recently stymied the adoption of the anti-counterfeiting treaty ACTA (passed in the US) on human rights grounds.

Democratic legitimacy

The creation of an additional (trade) ‘regime’ above and beyond the EU – which has fought so vehemently even for the imperfectly democratic institutions that it has – is likely to raise further concerns with the legitimacy of governance in Europe.

The EU is already considered remote from its citizens – not through its size, but on account of its mode of governance.

There is a growing critique concerning the EU's reach on a range of issues from foreign policy to national budgets. This new partnership, even further away from democratic control, is so far being sold to citizens on economic grounds alone. Yet these economic premises also need to be tested in an open democratic debate.

Civil society, NGOs, consumers, citizens, politicians and institutions from both sides should be more involved. Yet, despite its possible detrimental consequences for EU and US democracy, it has so far been an opaque process

Dr. Marija Bartl and Dr. Elaine Fahey are postdoctoral researchers on the Architecture of Postnational Rule-Making Project, University of Amsterdam, the Netherlands.