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Old Wine in New Bottles: Contesting the TTIP and TISA

The currently most contentious trade agreement is undeniably the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the USA. Negotiations have been on-going, mainly in secrecy, since 2013. While the EU Commission has claimed that the agreement would generate growth and jobs, suspicions have been rising, on both sides of the Atlantic, that a range of provisions would be beneficial to large corporations at the expense of the capacity of states to regulate markets in the name of public interest. Contentious debates have focussed on a few areas. Surprisingly, the most visible issue has been the politicization of the otherwise highly technical investor-state dispute settlement, which allows private investors to contest the lawful nature of national regulation. It has been seen as a serious threat for states’ regulatory capacity. Interestingly, this has impacted also on the negotiations with Canada since, in the wake of public protest on the TTIP, the French and German ministers for trade issued a joint statement asking the Commission to revise the investor-state dispute settlement enshrined in the CETA, with German diplomats claiming that Germany could reject the treaty (Euractiv 2014, 2015). Second, opponents to the TTIP have claimed that the foreseen deregulation (i.e. removal of non-tariff barriers) would harm consumers, with regard to, for example, food safety and genetically modified organisms, or the environment. The fate of welfare services has been a third bone of contention since healthcare, education and culture have been main targets (notably of US commercial interests) over the past 20 years. Opponents of the TTIP see ‘the risk that European health, education and other welfare services will be partly privatized and contracted out to US corporations’ (Crouch 2014 , p. 177). For Crouch, as for many observers, both the nature of the negotiation process and their substantive content are ‘a textbook example of trends towards post-democracy’ (ibid.), that is, the insulation of policy making from democratic politics and its subordination to the interests of large multinational corporations at the global scale.

Drawing on the history and established networks of transnational contestation against the MAI, GATS or, more recently, the AntiCounterfeiting Agreement (ACTA), a new global campaign has been on the rise. Beyond established links with Canadian organizations, the campaign against the TTIP has featured new transatlantic cooperation between civil society organizations in the USA and Europe (Strange 2015). In Europe, the campaign was mainly coordinated by the ‘Seattle to Brussels’ network, with Friends of the Earth Europe and the European Corporate Observatory playing a key role. The network launched an online petition ‘Stop TTIP and CETA’ which has been signed by more than 2.35 million people at the time of writing (July 2015).[1] The initiative is also meant to be a European citizen initiative. While taking into account the multiple policy dimensions involved with the TTIP, the framing has again been centred on the undemocratic nature of the negotiations. Repeated leaks of the draft agreements in 2014 and 2015[2] have fed concerns about the potential implications of the agreement for welfare services.

A controversy broke out about possible attacks on the NHS in the UK, whose government has been otherwise very supportive of the TTIP The controversy led the UK Trade Minister, Lord Livingston, to insist that publicly funded health was excluded from the agreement. In a letter responding to his request, the current Commissioner for trade Cecilia Malstrom answered that it was always up to national governments to decide whether they wanted to open sectors to private competition, use outsourcing or bring services back into the public sector and that, even

Box 5.1 EU-US Joint statement on public services European Commission Statement Joint Statement Brussels, 20 March 2015

The following statement was issued after a meeting held today in Brussels by EU Trade Commissioner Cecilia Malmstrom and the US Trade Representative Michael Froman:

Ambassador Froman and Commissioner Malmstrom discussed the important role public services play in the USA and the EU.

They confirmed that US and EU trade agreements do not prevent governments, at any level, from providing or supporting services in areas such as water, education, health and social services.

Furthermore, no EU or US trade agreement requires governments to privatize any service, or prevents governments from expanding the range of services they supply to the public. Moreover, these agreements do not prevent governments from providing public services previously supplied by private service suppliers; contracting a public service to private providers does not mean that it becomes irreversibly part of the commercial sector.

(continued)

Box 5.1 (continued)

Ambassador Froman and Commissioner Malmstrom also noted the important complementary role of the private sector in these areas. Private sector activities can improve the availability and diversity of services, to the benefit of people in the USA and the EU. Defining the appropriate balance between public and private services is up to the discretion of each government.

Finally, Ambassador Froman and Commissioner Malmstrom also confirmed that EU and US trade agreements do not impede governments’ ability to adopt or maintain regulations to ensure the high quality of services and to protect important public interest objectives, such as the protection of health, safety or the environment. The USA and the EU are following this same approach in TTIP and TISA.

Source: website Europa: www.europa.eu, date accessed 13November 2015

though EU public procurement rules applied, healthcare was never part of trade agreements on public procurement. The end of the letter nevertheless mentioned:

It is crucial to remember that there is a thriving private market for health services in the EU. This sector is a key European strength and it is important that the EU trade policy helps to enable our health services companies to access international markets like the US, as well as to encourage competition on the EU side. (European Commission 2015b)

In order to alleviate the concerns over welfare services, the EU and the USA issued a joint statement on public services in March 2015 (see Box 5.1)

In June 2015, the EP passed a first crucial resolution on the TTIP While activists had hoped that, like in other instances, the EP would support their grievances, they deemed the resolution ambiguous and disappointing

(especially regarding the investor-state dispute settlement). Still, the EP took a clear stance on welfare services by calling on the Commission to

build on the joint statement reflecting the negotiators’ clear commitment to exclude current and future Services of General Interest as well as Services of General Economic Interest from the scope of application of TTIP, (including but not limited to water, health, social services, social security systems and education), to ensure that national and if applicable local authorities retain the full right to introduce, adopt, maintain or repeal any measures with regards to the commissioning, organisation, funding and provision of welfare services as provided in the Treaties as well as in the EU's negotiating mandate; this exclusion should apply irrespective of how the services are provided and funded. (European Parliament 2015, p. vii)

However, the CEEP stressed that the position of the EP on public procurement did not guarantee that the new legislative package on public procurement, which is considered as protective of governments’ regulatory capacities, would be fully intact.

The trade unions—both the PSI and ETUC—were key in bringing the issue of welfare services to the fore in the campaign. Moreover, they provided linkage between the TTIP and another agreement on services, the TISA, which as the successor to the GATS is in discussion among about 50 WTO members since 2012. In April 2015, Wikileaks made public online the draft of the agreement, which had previously been kept very secret. On the basis of the leaks, Scott Sinclair and Hadrian Mertins-Kirkwood from the Canadian Centre for Policy Alternatives published a substantial report endorsed by the PSI which bore the title TISA versus Welfare services. Critics made clear that healthcare, social services, education and culture were at the heart of the negotiations. Trade unions have made efforts to develop expertise in order to understand the implications of free trade agreements such as TTIP, TISA and CETA (EPSU 2015). The European Trade Union Committee for Education has also been quite vocal in rejecting the TISA. And, although somewhat less visibly, the TISA has also been contested by organizations such as Attac Deutschland (2015).

  • [1] See http://www.s2bnetwork.org/
  • [2] See, for example, www.http://www.ttip-leak.eu/, date accessed 22 July 2015; http://leaksource.info/, date accessed 22 July 2015.
 
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