The United States’ resistance to greater transparency in the Transatlantic Trade and Investment Partnership (TTIP) talks, poses a problem to a European Commission that must answer demands for more openness from civil society if it is to seal the trade deal, the European Ombudsman has told EURACTIV in an exclusive interview.
Emily O’Reilly is the European Ombudsman. The Ombudsman investigates maladministration in the European institutions. She spoke to deputy news editor James Crisp before the latest round of talks, which started yesterday (20 April) in New York.
Where do we now stand on transparency and TTIP?
There is quite a change in mood music between this European Commission and the former one but I don’t think it’s because they have suddenly developed a love affair with transparency. But I do think that this Commission and in particular Trade Commissioner Cecilia Malmström sees the business case for being more transparent.
If they want to get TTIP across the line then they have to yield to an amount of the transparency demands that there is around this.
I read a paper about the Commission’s communication strategy for TTIP and you could see quite clearly how shocked they were by the attention on this. There was a new player in the game; social media that was energised by civil society.
Frankly, the Commission is not used to that level of attention.
No, you are right. The old rules could not apply. And while people might not like it, that is the 2015 reality of how things are done.
When the new Commission came in they saw there had to be a turnaround. Then they announced their new transparency policy and took on board some of the issues I had raised with them.
So if you go online now, there’s lots of stuff. Certainly the Commission is doing its best. But the critical piece in this is the US.
You want more access to the EU-US consolidated negotiating texts for TTIP [papers outlining agreed joint positions on aspects of the deal, US negotiating papers remain classified].
Or any. There’s quite a disparity in transparency culture between the EU and the US. The US considers all trade agreement documents, no matter how anodyne, as classified. The US can give reasons and some of them may be justified but whatever reasons they give have to be interrogated by the EU.
I do get a very strong sense from Commissioner Malmström that she gets it. She’s a transparency person but she still has the responsibility of this trade agreement and delivering it.
There are the infamous reading rooms, where MEPs can view the consolidated texts.
All MEPs can all go into them now, not just members of the Trade Committee. They can bring in a pen and they can write on watermarked paper. But nobody has yet been able to answer the question I’ve posed, “What are you supposed to do with the information you get?”
As for our US counterparts, they also have reading rooms. But they are told if anything leaks – they will go to jail.
Has the EU basically said, “The US says this is classified and we have to accept that”?
I think that was the view. And it is what Commissioner Malmström said to me. But in the Commission’s response to my investigation it said that it will continue to seek to persuade the US of the need for greater transparency in these trade talks. So I imagine behind the scenes that is happening. Whether it works or not…
But in the end, who cares more about this trade agreement? The EU or the US? If the EU cares more they will be putting pressure on the US because there is so much pressure on them.
If it doesn’t mean as much to the US, and this is pure speculation on my part, they may not be willing to give into the transparency demands.
You have the power to demand any EU document. But the US refused your request to see a Europol report connected to the Terrorist Funding Tracking Program, which gives the US access to banking details.
The US basically has a veto right over any records to which it has contributed information. Europol asked the US, it refused. I asked the Ambassador and he refused. The attitude the US took, mirrored its attitude to the TTIP issues as well.
But I get the strong impression that the EU and certainly Commissioner Malmström recognises the problem and think the Commission is doing its best to get the stuff out there.
Because of public pressure?
They were quite taken with the number of responses they got for the public consultation on Investor-State Dispute Settlement (ISDS) clause.
There were about 150,000…
Yes a lot of them were online templates but nonetheless. I think what Malmström is trying to do now is devise an EU ISDS prototype that will get rid of some of the perceived problems.
I suspect what will happen is that it will be ISDS but it will be called something else.
Well, Winscale-Sellafield. [Sellafield was the new name for a UK nuclear power station, given after bad publicity].
Is just setting up a website enough to deliver transparency?
Sometimes these things can be a longer play. I was pleased with TTIP. It’s a different Commission. It’s easier to work with this Commission because they’ve got the message on transparency because they see the demand for it.
The other issue with TTIP is lobbying. The Commission made a lot of the fact that if you go onto the website all the meetings that the Commissioners, the director general and members of the cabinet are there.But the meetings of the lower orders aren’t there and the names of the people they are meeting aren’t there – just the company names.
If you are meeting with Coca-Cola – are you meeting with the person who makes the tea or the person with the recipe? That’s important.
They say, data protection. But what I have been told by my lawyers is that the Commission could say, if you want to meet us, your name has to go on the website.
How powerful do you think the business lobby is in Brussels?
When you come here you are immediately hit by it. You go to the Parliament and see the Transparency Register and see people queuing up to sign it. I was watching everybody coming in and I thought it would be a great journalistic enterprise to ask every single person coming in – who are you? Who are you meeting?
When you see it happening so publicly, you can’t help but think someone, somewhere is doing the real stuff!
You have been Ombudsman now for about 18 months. Your feet are now firmly under the table. So I am going to put you on the spot – how would you grade the administration of each of the EU institutions?
Generally the Commission seems to come out better than the other big institutions, possibly because there’s more scrutiny of it, and because they have to lead by example. If you take the Transparency International report that came out recently, the Commission scored higher on transparency. Then it was the Parliament, and then it was the Council.
I think where the Council falls down is on transparency. If you take the transparency register, it’s not part of it. So that is a problem.
The Commission, to be fair to it, would be getting a B-ish grade.