21st Mar 2018


Passing the court of public opinion

  • MEPs were triumphant after voting down Acta, an anti-counterfeit treaty (Photo:

EU trade negotiators are used to working in secrecy, and say that it is the only way to secure a good deal. Unfortunately for them, that is no longer possible.

The negotiations on the EU-US trade deal known as TTIP have been a tough learning curve for the Commission.

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This week the EU executive revealed that its online consultation on investor protection in TTIP was flooded by 145,000 responses containing, in the somewhat piqued words of the Commission, “pre-defined negative answers” co-ordinated by campaign groups which oppose any trade agreement with the US, let alone one which includes the controversial investor protection clauses.

Investor protection, and specifically the mechanism known as investor-to-state dispute settlement, which gives companies the right to sue governments, may have become the cause célèbre for opponents of TTIP, but secrecy has become the most effective weapon in the hands of campaigners.


The charge of secrecy was what sank Acta, the anti-counterfeit treaty which was vetoed by the European Parliament in summer 2012 after years of painstaking multilateral talks where the Commission represented the EU.

Karel de Gucht, then EU trade commissioner, would report on the state of negotiations with MEPs every few months. The documents themselves were kept under wraps. What annoyed MEPs was not so much the content of the treaty as the fact that they had been shut out of the process.

Following Acta’s stunning defeat, when the European Commission was given its mandate to negotiate a trade deal with the United States a year later, it vowed that the charges of being secretive would not be laid at their door again.

As a result, more documents than ever before (although, crucially, not the actual negotiating documents or the minutes from the meetings) have been made publicly available, and the EU executive has held countless briefings and ‘stakeholder’ meetings with a raft of different interest groups.

But it still doesn’t appear to be enough to convince public opinion.

The trouble with secrecy is that it offers such fertile ground for myth-making. Without access to the actual negotiating documents and the minutes of the meetings, it is easy for the rhetoric to exceed the reality.

Since public trust for politicians has seldom, if ever, been lower, press statements and impassioned words from politicians and government departments simply aren’t going to be enough. It is no longer enough for a trade agreement to satisfy the demands of politicians.

Perhaps full transparency and public negotiations of international agreements - which EU and US officials have both dismissed as fantasy - are the only way to avoid the charge of secrecy.

US-style inertia

One of the changes brought about by the Lisbon treaty was that the Commission gained exclusive competences to negotiate international trade agreements on behalf of the EU, subject to the European Parliament’s approval - effectively a veto.

What this has done is lift the barrier for ratifying a trade deal much higher.

Having frequently had to adopt the tactics of a campaign group to increase its legislative power through several decades of treaty change, the European Parliament is particularly responsive to public opinion.

Most of the Parliament’s political groups were relatively sanguine about the contents of the Acta treaty, it was the public protests that forced a domino effect as the Socialists, Liberals and then parts of the centre-right EPP realised that backing Acta could cost them and their parties votes.

The danger is that this pushes the EU in the direction of US-style inertia when it comes to international treaties.

Negotiating and then ratifying an international treaty or trade agreement is already painfully slow. For example, the draft EU/Canada free trade agreement took four years to be agreed and now faces a further two years going through the Canadian and European parliaments, as well as Canada’s 13 provincial assemblies, before deputies take the final votes on whether to put it into law.

TTIP faces similar time pressures, potentially dragging its final ratification up to 2019, just in time for the next European election campaign.

The US’s requirement of a two thirds Senate majority for any international agreement to be ratified, combined with domestic politicking and the election cycle, has created a climate in which even seemingly uncontroversial agreements struggle to secure enough votes.

The UN arms treaty, reforms to the International Monetary Fund, and a UN treaty giving equal rights for people with disabilities, have all been blocked by US lawmakers over the past year.

In retrospect, the collapse of Acta looks increasingly like a watershed moment in the way that the EU adopts international agreements.

NGOs realised that a well-organised media campaign and public protests could persuade MEPs to sink a treaty that few of them had read, and even fewer understood. The parliament could be guided by public opinion.

The content of a trade agreement is invariably as dull, technocratic and apolitical as trade negotiators say it is. But that doesn’t matter any more. They now have to pass the court of public opinion - and that may be a higher barrier than many agreements worth passing can clear.


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