Press release


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TiSA international services agreement

Leak reveals major interference in European regulation


Yesterday, Wikileaks released 17 secret texts of the Trade in Services Agreement (TiSA) negotiations (1), including annexes covering a wide range of issues and sectors but also a document on member states exceptions from the liberalisation requirement. The leak came on the same day as ministers discussed TiSA at an annual OECD meeting and ahead of the crucial 13th round of TiSA negotiations on 10 July (2). Commenting on the leak and the negotiations, Greens/EFA vice-president and trade spokesperson Ska Keller said:

“This leak proves how wide the impact of TiSA could be and confirms fears that it is intended to cover a large range of services, also services of public interest. Given the potentially far-reaching impact of TiSA on citizens, it is scandalous these talks are cloaked in secrecy.

"The leak makes clear that TiSA is another example of an international agreement, which is being manipulated by businesses to avoid regulation. The so-called 'necessity test', which is under consideration, would mean that any regulatory measure needs to have its burden on business tested. The profit margin of companies is apparently a bigger concern than the public interest.

"Regulation should be the prerogative of democratic legislators and devised to serve the public interest, not tailored to the whims of big business. This principle is being seriously undermined by the liberalisation and deregulation agenda under TiSA and other international agreements. The leak confirms how even the reservations member states made are under threat. It is time for full transparency on these negotiations and for the negotiators to ensure the agreement does not undermine the right of democratic legislators to legislate.”

(1) Link to leak: https://wikileaks.org/tisa/

(2) The 13th TiSA negotiation round includes a 'political stocktaking', which will attempt to raise the level of ambition of the negotiations, which have yielded little tangible progress after 2 years. Negotiators will explore a possible deal on two important issues: the inclusion of a 'necessity test' on domestic regulation and financial services, which would test any regulatory measure for the burden it places on businesses.

 

Background information on some of the issues under the TiSA leaks:

Domestic regulation: putting conditions on domestic regulation constrains the basic capability to regulate on issues that do not in principle affect trade; it concerns measures that are non-discriminatory and that equally apply to domestic and foreign operators. As a consequence, it implies a huge potential to reduce the regulatory margin of national authorities. It covers licensing requirements and procedures, qualification requirements and procedures, and technical standards, which are fundamental regulatory tools to guarantee high quality services. According to the proposals under TiSA, all domestic regulation would have to undergo a so-called 'necessity test': measures will have to be “administered in a reasonable, objective and impartial manner” and be “not more burdensome than necessary”.

The “objectiveness” condition could, for example, turn a requirement to discriminate in favour of disadvantaged social categories (e.g. in order to get a licence an operator has to hire a number of disadvantaged workers) incompatible with TiSA because it could be considered as a biased requirement. Requesting higher standards than international ones for being an authorised service provider could also be considered incompatible.

The requirement of being “not more burdensome than what is necessary" to ensure the quality of the service would very much reduce the autonomy of national authorities to choose the level of quality they wish or consider necessary and the prerogative to assess such appropriateness would be left  to a dispute settlement body.

A further provision that “fees charged by the competent authorities [have to be] reasonable and determined with regard to the administrative costs involved” could imply, for instance, that cross-subsidisation through licencing fees could be prohibited (e.g. charging a higher licencing fee than strictly necessary in order to finance an essential public service in a disadvantaged area).

Domestic regulation disciplines strike at the core of the regulatory prerogative of public authorities. This has been a feature of various negotiations over the past 20 years since the GATS negotiations. The EU hopes that, by reducing the number of negotiating parties under TiSA, it will be easier to reach an agreement on this issue in exchange for concessions elsewhere. From the leaked TiSA text, it appears that principles like proportionality and objectiveness take precedence over the right to regulate. The text states that “Parties [merely] recognise the right to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet public policy objectives”. It is written nowhere that the right to regulate takes precedence over objectiveness and proportionality.

Member states' reservations: this issue, mentioned in one of the leaked texts, is a provision enabling national authorities to keep full margin to further regulate in a more restrictive manner, if needed, at any time in the future, which featured in the EU-Canada trade agreement (CETA). The US wants the number of these reservations to be reduced in the context of EU-US TTIP negotiations. This exercise is expected to be completed in view of the next TTIP negotiating round in July. The leaks show the issue is also a feature of the TiSA negotiations. There is total secrecy around this process. As the leaked text highlights, it is impossible to understand what is being discussed because reservations are indicated with code numbers. We must have full transparency around this process: member states' reservations or Annex II reservations are very important public policy tools, which are necessary to protect public services. It is crucial that the little remaining margin left to protect public services is not compromised under these negotiations.

Leak TiSA-Abkommen

Eingriffe in Gesetzgebung und öffentliche Dienstleistungen


 

Wikileaks hat am Mittwochnachmittag 17 bisher geheime Verhandlungstexte zum Dienstleistungsabkommens TiSA veröffentlicht (1). Dazu gehören Anhänge, die sich mit heimischer Gesetzgebung, Finanz-Dienstleistungen, E-commerce, Transparenz, Verkehr und Telekommunikation beschäftigen. Besonders interessant ist ein Dokument zu den gewünschten Ausnahmen der EU-Mitgliedsstaaten von der geplanten Liberalisierung. Am 10. Juli planen die Verhandler eine Bestandsaufnahme der bisherigen Ergebnisse. Nach zwei Jahren Verhandlungen gibt es bisher nur wenige Fortschritte. Besonders kritisch ist ein geplanter "Notwendigkeitstest" für Gesetzgebung und Finanzdienstleistungen. Ska Keller, stellvertretende Vorsitzende der Grünen/EFA-Fraktion im Europäischen Parlament und Mitglied des Handelsausschusses kommentiert die nun veröffentlichten Dokumente:

 

 

 

 

"Diese Leaks zeigen, wie groß die Auswirkungen des TiSA-Abkommens auf die Bürgerinnen und Bürger in der EU sein werden. Mit TiSA sollen Dienstleistungen liberalisiert werden, auch solche, die im öffentlichen Interesse sind. Wenn der Notwendigkeitstest so wie geplant kommt, muss jedes Gesetz, dass Dienstleistungen reguliert, darauf geprüft werden, ob es für Unternehmen einen Mehraufwand bedeutet. Das erschwert Gesetzgebung im Allgemeininteresse massiv. Die Interessen der Wirtschaft zählen bei den Verhandlern offenbar mehr als die Interessen der Bürgerinnen und Bürger. 

 

 

Regeln und Gesetze zu machen, ist das Herzstück der Parlamentsarbeit und damit auch der Demokratie. Dieses Recht wird entscheidend eingeschränkt durch die geplante Liberalisierung im TiSA-Abkommen. Selbst die Ausnahmen, die sich die Regierungen der EU-Mitgliedstaaten bei TiSA; aber auch anderen Abkommen wie TTIP, bisher vorbehalten haben, stehen jetzt auf dem Prüfstand. Welche Ausnahme fällt und welche bleibt, ist völlig intransparent. Die Grünen/EFA-Fraktion verlangt hier Transparenz und Respekt vor den Gesetzgebern."

 

 

 

 

 

 

(1) Die geleakten Dokumente finden Sie hier: https://wikileaks.org/tisa/

 

 

 

 

 

 

Hintergrundinformation (in EN):

 

 

 

 

1) Domestic Regulation: putting conditions on DR is constraining even the basic capability to regulate on issues that do not in principle affect trade, because it concerns measures that are non discriminatory and that equally apply to domestic and foreign operators. DR disciplines have therefore a huge potential in reducing the regulatory margin of national authorities. DR covers licensing requirements and procedures, qualification requirements and procedures, and technical standards, which are fundamental regulatory tools to guarantee high quality services. According to the intention of the negotiators, all DR would have to go through the so-called necessity text: measures will have to be “administered in a reasonable, objective and impartial manner” and be “not more burdensome than necessary”. 

 

 

 

 

Some concrete examples: Firstly, the “objectiveness” condition could for instance turn a requirement to discriminate in favour of disadvantaged social categories (e.g. in order to get a licence an operator has to hire a number of disadvantaged workers) incompatible with TiSA because it could be considered as a biased requirement; or requesting higher standards than international ones to be an authorised service provider could also be considered as non-objective (e.g. international standards could be considered insufficient and regulators should have the right to require any level of standards they deem necessary). Secondly, the requirements of being “not more burdensome than what is necessary" to ensure the quality of the service would very much reduce the autonomy of national authorities to choose the level of quality they wish or consider necessary and the prerogative to assess such appropriateness would be left  to a dispute settlement body. Thirdly, such provisions as “fees charged by the competent authorities [having to be] reasonable and determined with regard to the administrative costs involved” could imply, for instance, that cross-subsidisation through licencing fees could be prohibited (e.g. you charge a higher licencing fee than what is strictly necessary in order to finance public school in a poor village or whatever other public service in disadvantaged areas of your country). Or again, “ensure that a licence authorisation, once granted, enters into force without undue delay”: what if in the meantime civil society calls for a public consultation or if public authorities want to carry out extra impact assessments if more doubts regarding health or environmental protection emerge? Would those unduly delay the entry into force of the licensee’s rights?

 

 

 

 

DR disciplines strike at the core of the regulatory capabilities of public authorities. Moreover, from the leaked text, it appears that such principles as proportionality and objectiveness take precedence over the right to regulate: in fact the text reads that “Parties [just] recognise the right to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet public policy objectives”. It is written nowhere that the right to regulate takes precedence over objectiveness and proportionality.

 

 

 

 

Already during the GATS negotiations, Parties tried to find an agreement on DR but they failed; and also during the 20 years that have followed the entry into force of GATS, further attempts to re-open negotiations have brought no concrete results. This proves how controversial and delicate DR is. The EU, which has an offensive interest in DR, hopes that, by reducing the number of negotiating Parties under TiSA it will be easier to close the DR chapter in exchange of concessions somewhere else.

 

 

 

 

2) Also one of the leaked texts refers to the MS reservations which are being discussed between national governments and Commission. This refers to so-called Annex II reservations that MS managed to keep under CETA, measures around which national authorities want to keep a full margin to further regulate in a more restrictive measure, if needed, any time in the future. The US is now asking that the MS reduce the number of those reservations in the context of TTIP negotiation. This exercise is expected be completed in view of the next TTIP negotiating round in July. There is total secrecy around this process. As the text shows, it is impossible to understand what MS are discussing about because reservations are indicated with code numbers. We must have full transparency around this process: Annex II reservations are very important public policy tools which are necessary to protect public services (at least this is what the Commission has always told us, not to worry because public services are protected through Annex II reservations). Are we therefore giving away the little margin left to protect public services?