Edward Bowles is a Member of the European Commission’s Advisory Group on TTIP, and writes this in a personal capacity.
For those of you familiar with Michael Punke’s book ‘The Revenant’ (or screen portrayal of the same), the central character, played by Leonardo di Caprio, is mauled terribly by a grizzly bear, betrayed by his appointed protector and left for dead deep in woodland in frozen conditions. Against all the odds, he not only survives, but makes it back to the camp, where upon he tracks down and kills his betrayer – at which point the similarities with TTIP should end.
TTIP was all but written off following the election of Donald Trump, having already endured severe mauling at the hands of anti-globalisation movements. But there are now signs that TTIP has crawled its way out of the woodland where it was left for dead, with quietly constructive noises seeping out of Washington and Berlin. The institutions in Brussels are playing down all talk of a renaissance at this stage, and the Advisory Group of which I am a nominal member has no plan to meet again. So far so sensible.
L'esprit de l'escalier?
When people look back at the time spent, they will, I hope, recognise that there were some fairly basic handling errors. The first was the fact that the EU mandate was not disclosed until after Cecilia Malmström became Commissioner, eighteen months into the negotiation. Her predecessor, Karel De Gucht, had asked for it to be disclosed, but was blocked by certain individual countries in Council. This schoolboy error allowed several myths to become accepted as facts, not the least of which was the forcible privatisation of the UK’s National Health Service. By the time the nineteen-page document was disclosed, it was almost impossible to undo the damage, even though the Mandate makes clear that national healthcare is outside the scope of negotiation, and not subject to investor-state dispute settlement (ISDS). No objective reading of that Mandate could lead anyone to conclude that they had just come across some great state secrets – it ought never have been withheld.
The second great issue was the ISDS proposal itself. In part, the failure to disclose the Mandate created the groundswell of speculation that this was a deal being done in secret, which could lead to businesses suing governments capriciously. ISDS does no such thing, in either version of its proposal. Every trade agreement requires some mechanism for dispute resolution between the parties, and there were already myriad bilateral investment treaties in existence, which had not come to the attention of the anti-globalisation lobby before TTIP came along. But ISDS became the albatross around Cecilia Malmström’s neck in Europe, and consumed more than a year of political capital and officialdom, before things began to calm down. As we now know, following the CJEU ruling on the Singapore FTA, ISDS is one of the two areas that require Member State’s participation in the concluding.
The third issue, it seems to me, is the near total failure of Member States to remain engaged consistently or politically in TTIP. Very few Heads of Government, or their Ministers, invested serious time in championing TTIP, or seeking to support (or challenge) the Commission in its dealings with the US. To give one example, for the Finance Minister of one country (that hosts a large financial services sector) to not even know that financial services was in the Mandate – let alone not to champion TTIP during their Presidency – seems to me to be a fairly extraordinary state of affairs. Happily, Member States now recognise this, and have made it clear that the same mistake will not be made in the negotiations with the UK.
The Advisory Group is one innovation that the Commission should be praised for. It required no small dedicated resource to service it, and the Chief Negotiator and his team were unfailingly generous with their time and responsiveness, within certain constraints. The Group represented the broadest possible cross-section of interested parties, and – despite some very different perspectives – was a remarkably harmonious forum, where serious detail and issues were discussed. Whether the Commission truly found it useful is unclear to me, but I did and I have the impression that my colleagues did too. There were frustrations, of course, including the fact that we only had access to the EU texts, and not the consolidated texts, despite the fact that we could only view them in the Reading Room in the Charlemagne Building. But it cannot be said that the discussions lacked candour, or that we were ever the source of a leak.