TTIP - challenging the European Commission's unlawful intransigence

Stop TTIP logo. Image: Stop TTIP via Flickr.
Stop TTIP logo. Image: Stop TTIP via Flickr.
The Commission's refusal to 'register' a European Citizens Initiative demanding an end to negotiations over the TTIP trade deal is more than just an affront to the 'democratic values' that Europe is meant to represent, write Mary Fitzgerald & Michael Efler. It is also unlawful, and the legal challenge filed today at the ECJ is richly deserved.
It is absolutely unacceptable that, after secret negotiations over which we have no influence, the European Parliament and the public are presented with a fait accompli.

Well, thanks to some encouraging ruckus in the last few months, you may actually have heard of TTIP: the anodynely-acronymed 'Transatlantic Trade and Investment Partnership'.

In plain English, it's a massive trade deal between the EU and North America which could affect everything from healthcare choices to government banking regulations to the air we breathe. (And it gets better, TPP is the US-Asia Pacific counterpart.)

Activists and even some politicians have been up in arms about one particularly nasty element of these behemoths, which together will cover almost 50% of global GDP.

That element is the proposed secret courts where, in theory, oil companies could sue governments who try to bring in green-friendly policies, tobacco companies could challenge advertising restrictions, and private healthcare providers could pick apart what's left of national health services. To name a few.

Don't mention the deal behind the curtain

But in truth, we just don't know what TTIP will mean because the negotiations are happening in secret. And the European Commission has made a mockery of its own European Citizens' Initiative, whereby citizens are supposed to be able to register dissent.

Last September it refused to 'allow' that dissent to be registered - a spectacular own goal because, in making it so plain that this supposedly democratic mechanism is toothless, it paved the way for a challenge in the courts - filed this morning in the European Court of Justice.

Stop TTIP - an alliance counting over 250 organisations from across Europe - had tried to use the European Citizens' Initiative (ECI) to repeal the negotiating mandate for TTIP and not to conclude CETA - the Canada-Europe Trade Agreement.

The ECI was established with the Lisbon Treaty and was regarded as a major improvement of the "democratic life of the European Union".

Long before requesting registration of the ECI, Stop TTIP asked for a legal pre-check of our petition text. A public servant of the Commission said that it would be no problem to get an answer.

It is absolutely unacceptable that, after secret negotiations over which we have no influence, the European Parliament and the public are presented with a fait accompli.

But even after phoning and e-mailing again and again, they failed to deliver an answer. That´s why we decided to submit our request on 15 July.

The Commission's highly questionable legalities

Then the Commission needed another two months to refuse the registration in a short letter based on two surprising arguments:

The first is that the Commission sees the mandate for an international agreement only as a preparatory act with no legal effect on citizens, and so could not be influenced by an ECI. This interpretation has no basis in the European Treaties. An ECI could request a legal act. There is no need to request a legal act with direct effect on citizens.

The second is even more disturbing. The Commission distinguishes between two forms of ECIs directed at the conclusion of an international agreement of the EU. The first one is to request positively the conclusion of an agreement. This is admissible according to the Commission.

But when an ECI - as in our case - wants to say No to the conclusion of an agreement it is not admissible because it produces no legal effect on citizens. This formalistic approach is more than questionable from a legal point of view.

'Say want you want but it doesn't change anything'

Politically, the argument of the Commission has a simple message: international trade agreements should be negotiated without public intervention. It is absolutely unacceptable that, after secret negotiations over which we have no influence, the European Parliament and the public are presented with a fait accompli.

The Commissions' decision is very much in line with similar acts in the last months. For example, look at the so-called consultation on investor-state-dispute-settlement (ISDS) in TTIP.

The retiring trade Commissioner Karel de Gucht - who denounces some TTIP critics as liars - regarded the coordinated contributions of 150,000 people to the consultation as an "attack" on the system. And shortly after the deadline of the consultation, he proudly declared the CETA negotiations as finalized.

The draft text has a chapter on ISDS almost identical to that of the consultation on ISDS in TTIP. So the Commissions' maxim seems to be: "you can say want you want but it doesn´t change anything."

Even national parliaments are excluded

The Commission also wants to avoid the ratification of CETA and TTIP in the national parliaments. It regards the treaties as 'EU-only' agreements, only to be ratified in the European Parliament and concluded by the Council. Not only do the people of Europe have no say or 'right to know' - nor even do national parliaments.

What we do know, however, are the lessons from recent history. As Saskia Sassen, who has looked at this question for decades, points out: time and again, when global corporations gain rights through free trade deals, citizens lose out - in large part through a negative boomerang effect of job losses and wage stagnation that cheaper goods just don't compensate for.

We also know that it's farcical of the European Commission to try and claim that Europe's citizens cannot have a say in this process because the treaty will have "no legal effect" on citizens. Grist to the mill of UKIP and others - as if they needed it.

So, how will we proceed with the ECI campaign? We will not be ending our protest just because the European Commission wants to gain time with an unfounded and politically motivated rejection.

Democracy arises through social intervention and participation in the political process; it is not something to be granted or denied by Brussels. That is why in early October, we launched an unofficial self-organised European Citizens' Initiative.

The European Commission is trying to ignore us. We will ignore the European Commission. And this morning we - the Stop TTIP coalition laid down our challenge to the Commissions' decision at the European Court of Justice.



Mary Fitzgerald is Editor-in-Chief of openDemocracy. Before joining oD she worked for Avaaz, the global campaigning organisation, and is a former Senior Editor of Prospect Magazine. She has written for the Guardian, Observer, New Statesman and others. Follow her on Twitter @maryftz

Michael Efler is a member of the citizens´ committee of the ECI Stop TTIP.

For more information please visit: Stop TTIP.

To sign the unofficial Citizens Initiative please visit: Stop TTIP.

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This article
was originally published on Open Democracy with additional reporting also from Open Democracy.