TTIP, CETA, TiSA Behind Closed Doors: Transparency in the EU Trade Policy

Abstract

Transparency in diplomatic negotiations and political discussions is an oxymoron. Rather, secrecy and informality traditionally reign negotiations at the bilateral, regional and multilateral level. Yet transparency ranks among the most basic desiderata in the grammar of global governance and has been regarded as positively related to legitimacy. To date, transparency is not a universal principle: it matters for certain countries more than for others, depending on each country’s constitutional tradition and legal culture. In the case of the EU, transparent trade diplomacy is quintessential for constitutional reasons but also for broader political reasons: in the first case, even if trade matters fall within the exclusive competence of the EU, the EU executive is bound by the Treaty on the Functioning of the European Union (TFEU) to inform the European Parliament, the EU co-legislator, in regular intervals. The underlying rationale is that the Parliament must early on know what the EU negotiator (typically in trade matters, the European Commission) offers and receives in exchange at the negotiating table, as the final deal will be subject to the positive vote of the European Parliament. In the second case, transparency at an early stage is important in order to address public reluctance, suspicion or even opposition regarding a particular trade deal. The present chapter chronicles the quest for and turning moments relating to transparency during the EU trade negotiations with Canada for a Comprehensive Economic Trade Agreement (CETA); with the US for a Transatlantic Trade and Investment Partnership (TTIP); and with a group of WTO Members for a the Trade in Services Agreement (TiSA) at the plurilateral/WTO level. The chapter reviews the existing EU case-law on access to documents and discusses the transition towards an unprecedented level of transparency in the EU trade-related dealings. It concludes with some suggestions to streamline transparency-related efforts.