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Policy Brief

Europe Program

Vol. 2, No. 3

May 2015
Policy Challenge: The U.S.
Congress and the European
Parliament (EP) need to approve
the Transatlantic Trade and
Investment Partnership, but
have so far been marginalized
within the public discourse. This
is changing as Congress debates
Trade Promotion Authority
legislation. Members of the EP,
meanwhile, have successfully
claimed broader access to
negotiation documents and
will continue to fight for more
meaningful impact on TTIP
negotiations. The lawmakers
support for TTIP will increase
if their opportunities to affect
negotiations are strengthened.
Policy Recommendations:
TTIP provides an opportunity
to revitalize the transatlantic
relationship. Legislators in
Congress and the EP need to
engage in the public debate
on TTIP and provide balanced
information. They should use
their consultation and oversight
provisions to shape negotiations
and expand their cooperation on
TTIP. Jointly, they could take a
stronger stance on transparency
matters and address open and
contentious questions between
the United States and the EU.

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Getting Legislatures on Both Sides


of the Atlantic Engaged in TTIP
by Maja Ifland
Introduction
The Transatlantic Trade and Investment Partnership (TTIP) is more than
just a trade agreement. Once implemented, it would create the worlds
largest free trade zone, affecting the
lives of Americans and Europeans in
more profound ways than previous
trade deals.1 With the inclusion of
regulatory issues, such as reducing
non-tariff barriers and ensuring
coherent regulatory frameworks in
the United States and the EU, negotiations on TTIP go beyond those of
traditional trade agreements.2 TTIP
may also be the first official EU-U.S.
agreement that will need to be ratified
by both Congress and the European
Parliament (EP).
TTIP negotiation started in July 2013.
On the U.S.-side, negotiations are
conducted by the Office of the U.S.
Trade Representative (USTR), which
1 More information on TTIPs impact can be found on
the European Commissions website: http://ec.europa.
eu/trade/policy/in-focus/ttip/about-ttip/.
2 Besides reducing non-tariff barriers, TTIP will also
tackle market issues like tariffs and rules of origin and
seeks common grounds for norms and standards regarding investments, intellectual property rights, discriminatory industrials, and state-owned enterprises. See Daniel
S. Hamilton, TTIPs Geostrategic Implications, in The
Geopolitics of TTIP, Repositioning the Transatlantic
Relationship for a Changing World, ed. Daniel S. Hamilton (Washigton, DC: Center for Transatlantic Relations,
2014), ix.

is part of the presidents Executive


Office. Within the European Union,
the European Commissions Directorate General for Trade negotiates
on behalf of the EU member states, as
trade policy is an exclusive power of
the EU.
In the United States, free trade agreements generally trigger debates both
in Congress and the general public.
At present, the level of public attention on the Trans-Pacific Partnership (TPP), a trade agreement that
the United States is negotiating with
11 Asia-Pacific economies, remains
much higher than on the EU-U.S.
trade agreement. Unlike in the EU,
public fears that TTIP will lead to the
lowering of regulatory standards do
not exist. However, as in the EU, the
inclusion of the so-called investorstate dispute settlement instrument
(ISDS) in TTIP is highly contested.3
ISDS would grant private investors the
right to bring their case before a thirdparty arbitral tribunal if they believe
actions taken by a host government
are in breach of commitments made

3 See, for example, AFL-CIO, the umbrella federation


of U.S. unions: http://www.aflcio.org/content/download/138571/3647761/file/AFL-CIO_ISDSReport_5.pdf.

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Policy Brief
in the agreement.4 Furthermore, societal actors are blaming
the Obama administration for the secrecy of negotiations.
The situation in the European Union differs. Traditionally, EU trade and investment policies have neither been
debated much in public nor has the issue ranked among the
European Parliaments major priorities. TTIP is a gamechanger in this regard. With the public controversy that
TTIP negotiations have stirred up in many EU member
states, it has introduced EU trade policies into the realm of
politics. Concerns that are expressed by non-governmental
organizations, societal actors and citizens center around 1)
the lack of transparency of TTIP negotiations;5 2) general
fears over a lowering of national and European regulatory
standards, most notably regarding food safety, consumer
protection, and environmental standards,6 especially in
Germany, Austria, and Luxembourg; and 3) discomfort
about the envisaged inclusion of the investor-state dispute
settlement (ISDS).7
Legislatures on both sides of the Atlantic are pivotal given
that their approval is needed to implement a final agreement on TTIP. The agreement will not enter into force
without the consent of the U.S. Congress, the European
Parliament, and the Council of the EU, which represents
the EU member states. Moreover, it seems likely that TTIP
will not be concluded as an EU-only deal but as a mixed
agreement that touches upon member states competencies. A final deal would then also have to be ratified by
the national parliaments of the 28 EU member states.8
Whether or not TTIP will be a mixed agreement can only
be determined at the end of the negotiations by the EU
Commission.
This brief illuminates the involvement of lawmakers in
Congress and the European Parliament in TTIP negotia4 Peter Sparding, Germanys Pivotal Role on the Way to TTIP, GMF Europe Policy
Paper, no.5 (2014): 9-10, http://www.gmfus.org/publications/germanys-pivotal-role-wayttip.
5 See, for example, the self-organized European Citizens Initiative against TTIP and
CETA, Stopp TTIP, https://stop-ttip.org/about-the-eci-campaign/?noredirect=en_GB.
6 Sparding, 2014, 11-12.
7 See, for example, the Brussels-based research and campaign group Corporate
European Observatory (CEO) on ISDS: http://corporateeurope.org/internationaltrade/2014/04/still-not-loving-isds-10-reasons-oppose-investors-super-rights-eu-trade.
8 Most of the EU member states assume TTIP to be a mixed agreement, as the German
federal government states in its official answer to a Parliamentary request. See Antwort
der Bundesregierung, Drucksache 18/2687, 2014:5, http://dipbt.bundestag.de/doc/
btd/18/026/1802687.pdf

Legislatures on both sides of the


Atlantic are pivotal given that their
approval is needed to implement
a final agreement on TTIP.
tions while focusing on the legislators consultation provisions throughout the negotiation process. Scrutiny and
oversight are the main tasks of any legislator, second only
to law-making.
In spite of general differences between both legislative
bodies, members of Congress and the EP face similar
challenges. Given TTIPs comprehensive nature, voters in
Europe and the United States will ask for detailed information on TTIP and its impact on their daily lives. Legislators
will need to answer these questions before they give their
final consent and address public concerns over a lack of
transparency in negotiations.
Furthermore, lawmakers in Congress will likely be asked
to approve the Trans-Pacific Partnership (TPP) before
the EU-U.S. trade agreement, as TPP negotiations started
earlier and have progressed further than those on TTIP.
The same applies to the members of the EP (MEPs) with
regard to the EU-Canada free trade agreement (CETA).
CETA was finalized in September 2014 and will be due for
approval by the Council and the European Parliament once
it has undergone a legal review and been translated into
all the EUs official languages. TPP and CETA overshadow
the TTIP negotiations and will affect the legislators final
vote on TTIP in an indirect but decisive way. In the United
States, the highly contested TPP dominates the current
debate in Congress on whether or not to grant trade
promotion authority (TPA), the congressional-executive
agreement that would apply to TPP and TTIP in the same
way. In the EU the trade deal with Canada is often referred
to as a blueprint for TTIP, as both feature similar, highly
sensitive characteristics such as ISDS. With their vote on
CETA, members of the European Parliament will set an
example that will influence ongoing TTIP negotiations.

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Policy Brief
The Role of Congress and the European Parliament in
Trade Agreements
The Constitutional Role of the U.S. Congress
The U.S. Congress plays a particularly important role in
trade negotiations given that the constitution authorizes
it to regulate commerce with foreign nations.9 Thus
members of Congress not only have the final say regarding
any deal, they can also authorize the president, for a limited
period of time, to negotiate trade agreements by granting
TPA. This legislation, formerly known as fast-track
authority,10 is often referred to as a unique congressionalexecutive agreement; it asks Congress for concessions
regarding the legislative process in return for input into
the negotiations and oversight provisions. Most observers
agree that TPA is indispensable for any trade agreements
conclusion. The approval of TPA does not automatically
imply the approval of the trade agreements under negotiation, but the two are closely linked. TPA passage is the
most important stepping stone on the way for the conclusion and ratification of TTIP and TPP in the United States.
Given that both define negotiation objectives, TPA bears
similarities with the mandate the EU Commission needs
to receive from the member states before it can engage
in trade negotiations.11 Yet, while the Councils mandate
only refers to a particular trade agreement, TPA grants the
president a general yet only temporary authority for
several trade agreements under negotiation.12 Moreover,
the Councils mandate is a precondition to start negotiations, while TPA is not. The U.S. Constitution gives the
president the authority to negotiate treaties and international agreements.13
Trade Promotion Authority features three core elements.
It ensures a speedy legislative process once trade negotiations are concluded, also known as fast track. At the same
9 See Article 1 Section 8 of the Constitution
10 Fast-track authority was first enacted on January 1, 1975, under the Trade Act of
1974. Since then, it has been renewed four times, in 1979, 1984, 1988, and 2002.
Altogether, it has been used for 14 bilateral/regional free trade agreements. Ian F. Ferguson, Richard S. Beth, Trade Promotion Authority (TPA): Frequently Asked Questions,
Congressional Research Service, April 20, 2015: 4, https://fas.org/sgp/crs/misc/
R43491.pdf.
11 The TTIP negotiating mandate was approved on June 14, 2013 by qualified majority
voting in the Council of Trade ministers: http://data.consilium.europa.eu/doc/document/ST-11103-2013-DCL-1/en/pdf.

TPA passage is the most


important stepping stone on
the way for the conclusion and
ratification of TTIP and TPP in the
United States.
time it allows Congress to define negotiation objectives
for trade agreements negotiated under the current TPA
bill and establish consultation, notification, and reporting
requirements that the executive branch will have to adhere
to during the negotiation procedure.
The so called fast-track (expedited legislative procedure)
is referred to as the integral element of TPA. It has three
components:
1. It prohibits members of Congress from amending
the final deal once negotiations are concluded. By
committing Congress to a simple majority yes or
no vote, it reassures U.S. trading partners that the
final negotiation text will not be unraveled during the
legislative process.
2. It ensures timely floor consideration in order to guarantee that the final deal is voted on whether or not
political leadership is in favor of the legislation.14
3. Finally, TPA limits debating time once the agreement
is on the floor. Limiting the debate prevents filibustering, which opponents of a trade agreement could
use to make a final vote impossible.15
The most recent TPA legislation passed by Congress in
2002 expired on July 1, 2007. Thus far, it has not been
renewed, even though Obama asked Congress for reauthorization in 2013. TPA legislation that was introduced
in January 2014 by a bipartisan group of lawmakers
from the House and Senate was not brought to a vote as
congressional Democrats feared negative repercussions

12 Accordingly the TPA-2015 legislation would cover TPP, TTIP, and the Trade in Service
Agreement (TiSA), which is currently under negotiation as well.

14 Ferguson and Beth, 2015: 21.

13 Ferguson and Beth, 2015: 2.

15 Ferguson and Beth, 2015: 21.

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Policy Brief
in the November 2014 mid-term elections.16 Democratic
voters have blamed previous trade agreements for rising
inequality and the erosion of the U.S. manufacturing sector.
With TPP near to conclusion and Republicans now holding
the majority in both the House and Senate, the chair and
the ranking member of the Senate Finance Committee as
well as the chair of the House Ways and Means Committee
introduced a new TPA bill on April 16, 2015. The proposed
TPA-2015 legislation, the so-called Bipartisan Congressional Trade Priorities and Accountability Act of 2015,17
would apply to trade agreements entered into or signed
before July 1, 2018.18 If the president requests its extension,
Congress can extend TPA for another three years.
Congressional Oversight of TTIP
Congress maintains its role in shaping trade agreements
through consultative, notification, and reporting requirements, which are normally defined in TPA, vis--vis the
administration. While anticipating that Congress will
renew TPA, the Obama administration claims that it is
adhering to Congressional oversight provisions as established in the 2002-TPA bill. In 2014, U.S. Trade Representative Michael Froman stressed that any member of
Congress can review the negotiation text and that his
office had held more than 1,400 congressional briefings on
TPP.19 Nevertheless, members of Congress have repeatedly
voiced complaints about not being able to access negotiation documents unimpeded.20 In 2013, 151 Democrats in
Congress announced that they would oppose any TPA that
continues to exclude us from having a meaningful role in
the formative stages of trade agreements and throughout
negotiations and approval process.21 Similar concerns were
raised by a few Republican members.22
16 https://www.congress.gov/113/bills/hr3830/BILLS-113hr3830ih.pdf.
17 https://www.congress.gov/114/bills/hr1890/BILLS-114hr1890rh.pdf.
18 Currently the United States is negotiating the TPP with 11 Asia-Pacific countries, TTIP
with the EU, and the so-called trade in service agreement (TISA). TPA-2015 would apply
to all of them, if signed before July 1, 2018 or July 1, 2021.
19 Michael B. Froman, The Strategic Logic of Trade, Foreign Affairs, Vol. 93, no.6
(2014), https://www.foreignaffairs.com/articles/americas/strategic-logic-trade.
20 Dana Liebelson, Democrat Says Obama Administration Dodging Request To Read
Trade Deals Without Restrictions, Huffington Post, February 13, 2015. http://www.
huffingtonpost.com/2015/02/13/lloyd-doggett-tpp-trade_n_6680624.html
21 http://delauro.house.gov/index.php?option=com_content&view=article&id=1455:d
elauro-miller-lead-151-house-dems-telling-president-they-will-not-support-outdated-fasttrack-for-trans-pacific-partnership&catid=2&Itemid=21.
22 http://www.citizen.org/documents/joyce-fast-track-letter.pdf.

Members of Congress have


repeatedly voiced complaints
about not being able to
access negotiation documents
unimpeded.
The proposed 2015-TPA bill addresses these concerns by
tackling transparency issues and strengthening Congressional oversight. Accordingly it contains a new provision on the appointment of a chief transparency officer
at the Office of the U.S. Trade Representative (USTR), in
charge of consulting with Congress, advising the USTR
on transparency policy, and engaging with the public.23
Once adopted, TPA-2015 would furthermore require the
USTR to consult on trade negotiations with any member
of Congress who requests to do so and to provide classified
negotiation text of all trade negotiations to any member
of Congress and their staff.24 In addition, the TPA-2015
legislation includes a new mechanism permitting either the
House or Senate to withdraw expedited legislative procedures for a trade agreement, if the president does not meet
the requirements of TPA, by using a simple Consultation
and Compliance Resolution.25 Previous TPA bills incorporated similar disapproval mechanisms, but only if both
chambers of Congress agreed to similar resolutions.26
With regard to consultation requirements, the proposed
TPA-2015 legislation offers the prospect of establishing
separate House and Senate Advisory Groups on Negotiations, comprised not only of members of the House
Ways and Means and the Senate Finance Committees,
but Congressional members of other committees holding
jurisdiction over laws affected by the trade negotiations.
Members of the congressional advisory groups would
provide advice to the trade representative with regard to

23 Bipartisan Congressional Trade Priorities and Accountability Act of 2015: 64.


24 Bipartisan Congressional Trade Priorities and Accountability Act of 2015: 50-51.
25 Bipartisan Congressional Trade Priorities and Accountability Act of 2015: 93-96.
26 Ferguson and Beth, 2015: 25.

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Policy Brief
specific objectives, negotiation strategies, and positions.27
Members of those groups would be accredited as official
advisors to the U.S. delegation with regard to any trade
agreement negotiated under TPA. In addition, TPA-2015
would grant any member of Congress the opportunity to
be designated as a congressional advisor on trade policy
and negotiations, and, in that capacity, be accredited as
an official advisor to the U.S. delegations to international
conferences, meetings, and trade agreement-related negotiating sessions.28
The European Parliaments Formal and Informal Role
in Trade Agreements
The European Parliaments role in EU trade policies has
been strengthened over the past years as the Lisbon Treaty
grants EU legislators the authority to approve all trade
agreements together with the EU Council and dictates that
the Parliament be immediately and fully informed at all
stages of the negotiation process.29 The EP votes on trade
agreements with a simple majority of MEPs participating in
the vote. They can accept or reject the deal but not amend
it. Still, unlike Congress, the EP does not hold the ultimate
authority over trade agreements, and an equivalent to TPA
does not exist. Moreover, MEPs lack legally binding instruments to effectively input and shape EU trade agreements,
as the negotiation mandate, which defines negotiation
objectives, is exclusively granted by the EU member states.
However, EU lawmakers have nonetheless set their negotiation objectives for TTIP by using non-binding resolutions. The first TTIP-resolution passed in October 201230
primarily as a response to the recommendation of the
EU-U.S. High Level Working Group on Jobs and Growth to
enter negotiations on TTIP.31 The second TTIP resolution
was adopted in May 201332 and coincided with the drafting
of the TTIP mandate by the EU Council. It passed with 460
votes in favor, 105 votes against, and 28 abstentions out of a
total of 751. The resolution stressed overall EP support for
27 Bipartisan Congressional Trade Priorities and Accountability Act of 2015: 55-58.
28 Bipartisan Congressional Trade Priorities and Accountability Act of 2015: 54-55.
29 See Article 207(3) and 218 of the Treaty on the Functioning of the European Union.
30 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference
=P7-TA-2012-388.
31 See the interim report of the EU-US High Level Working Group tabled in June 2012
http://trade.ec.europa.eu/doclib/docs/2012/june/tradoc_149557.pdf.
32 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA2013-0227+0+DOC+XML+V0//EN.

MEPs lack legally binding


instruments to effectively input
and shape EU trade agreements.
TTIP, pointing out its potential to trigger growth and jobs
in Europe. When the resolution was drafted, many member
states faced rising unemployment and economic stagnation as a result of the ongoing euro crisis. At the same
time, MEPs emphasized the sensitivity of certain fields of
negotiations, such as the agricultural sector, where perceptions of genetically modified organisms (GMOs), cloning,
and consumer health tend to diverge between the US and
the EU.33 Currently, EU legislators are drafting a third
resolution,34 which will pass the floor in early summer
2015. As was the case with its predecessors, this resolution
will be non-binding but caters for the MEPs to formulate
the preconditions for their final approval. With nearly 900
amendments debated in the Trade Committee so far and
the involvement of another 14 of the Parliament`s committees in the drafting, this resolution is one of the current
EPs most contested initiatives.
While MEPs state their opinion on TTIP through these
resolutions, EU member state national parliaments remain
the big unknown. Given TTIPs magnitude, it seems
unlikely that any single national parliament will dare to
turn TTIP down, as it would carry the responsibility for the
failure of the deal. Still, national parliaments are formally
not involved in the negotiations of EU trade agreements
and future majorities in national parliaments are volatile,
especially with far right extremist and populist parties on
the rise in many European countries.
Parliamentary Oversight by the Members
of the European Parliament
Ever since the negotiations on TTIP started, transparency
issues and the European Parliaments oversight provisions
have been a point of contention between the EU-Commission, the Council, and MEPs. The dispute between the
European Parliament and the EU member states over
the release of the TTIP negotiation mandate is just one
33 See Paragraph 17 of the resolution, Resolution May 2013.
34 http://www.bernd-lange.de/imperia/md/content/bezirkhannover/berndlange/2015/preliminary_draft_2014-2228_ini__b_lange.pdf.

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example. The Council had classified the mandate as secret
for over a year, fearing that its release would be seen as a
precedent for future trade agreements. It took not only
numerous interventions by MEPs, but also an inquiry from
the European ombudsman35 to have the Council finally
publish the mandate in October 2014, just two days before
a scheduled European-wide day of protests against TTIP.
Parliamentary oversight over EU trade negotiations is
exerted primarily by the European Parliaments Trade
Committee (INTA), with the European Commission
being bound to report to the committee on the progress of
negotiations. However, since the EU Commission started
to negotiate TTIP, MEPs across party lines have called
for broader involvement beyond the Trade Committee,
arguing that the regulatory aspects of TTIP exceed traditional trade issues. Furthermore, MEPs constantly claimed
greater access to negotiation documents. As the chairman
of INTA, Bernd Lange, pointed out, in 2014, only 28 out
of 751 MEPs had access to negotiation documents, with
only 13 of those 28 having full access.36 Previous attempts
by the European Commission to with the permission of
the U.S. government allow selected MEPs to view key
TTIP documents in reading rooms did not appease the
lawmakers; only a very restricted number were granted
access to those reading rooms.37
Given the already strained relations with the EU legislators
and a public debate on TTIP turning increasingly adverse,
shortly after its inauguration in November 2014, the new
European Commission announced its so-called transparency initiative on TTIP.38 The initiative was launched in
January 2015 with Trade Commissioner CeciliaMalmstrm publishing EU negotiation positions and documents
on the Commissions website.39 Moreover, the Commission
promised all MEPs access to negotiation texts by expanding
35 http://www.ombudsman.europa.eu/cases/correspondence.faces/en/54634/html.
bookmark.
36 Press conference, Malmstrm and Lange, November 25, 2014, https://www.youtube.com/watch?v=IchWQ1LJYN0.
37 See http://www.europarl.europa.eu/news/en/news-room/
content/20140711IPR52249/html/MEPs-call-for-more-transparency-in-transatlantictrade-talks.
38 Communication to the Commission concerning transparency in TTIP negotiation,
C(2014) 9052 final Strasbourg, 25.11.2014 C(2014) 9052 final. See http://ec.europa.
eu/news/2014/docs/c_2014_9052_en.pdf.
39 U.S. documents or shared EU-U.S. negotiation texts are excluded from the release as
long as the U.S. side does not approve the publication.

the use of the reading rooms and announced it would lower


the classification levels of EU negotiation texts,40 implying
the more widespread use of electronic copies instead of
paper only copies.41
Yet, if the EU Commission is serious about its transparency
initiative, it still needs to tackle a number of issues. These
range from sensitive talks with the U.S. administration over
access to joint negotiation documents to the administrative
challenge of installing a sufficient amount of new reading
rooms in the European Parliament buildings.

If the EU Commission is serious


about its transparency initiative, it
still needs to tackle a number of
issues.
TTIP on its Way to Approval by Congress and the
European Parliament: Challenges and Obstacles
Congress Struggle over TPA
With U.S. mid-term elections over and negotiations on
TPP near to conclusion, the debate on TPA passage has
gained momentum. Republicans, now holding the majority
in the House and Senate, are generally considered to be
more supportive of free trade agreements than Democrats.
Accordingly, following the 2014 elections, Republican
leadership singled out trade policy as a potential area of
future bipartisan cooperation. Republican willingness
to cooperate with the president on the question of Trade
Promotion Authority could be seen against the background
of the upcoming 2016 presidential elections and the desire
of some congressional Republicans to demonstrate their
ability to govern and to pass legislation. As chances for
compromise in other policy fields are low, a bilateral effort
to pass TPA would be one of the rare occasions for Republicans in Congress to strike a political deal with the president.
40 Communication to the Commission concerning transparency in TTIP negotiation,
C(2014) 9052 final: 3.
41 See press conference, Malmstrm and Lange, November 25, 2014.

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With the TPA-2015 legislation now being introduced
and debated, the following weeks will be decisive: TPA
also requires Democratic votes in order to pass, since
Republican members of the Tea Party wing have already
expressed general opposition to TPA, arguing mostly
along constitutional lines.42 While trade policies have the
potential to unite Republicans, the proposed TPA-2015
bill divides Democrats in Congress. They remain skeptical
about TPA, as many Democratic voters and important
actors like the trade unions particularly oppose TPP43 and
blame previous trade agreements like the North American
Free Trade Agreement, for the erosion of the U.S. manufacturing base and the lowering of U.S. wages.44 Given that
the highly contested TPP might be concluded soon, there is
a clear link between TPP and TPA. Accordingly, members
decision on whether or not to vote for TPA is primarily a
question of support or resistance of TPP. TTIP will only
play a marginal role, even if TPA will apply to TTIP in the
same way.
While legislative approval for TTIP seems less contentious than for TPP, TTIP negotiators are faced with a lot of
open and contentious questions between the EU and the
United States. Accordingly, TTIP negotiations could last
for another two to three years, or longer. With regards to
the legislators final support for TTIP, a lot will depend on
whether the new TPA-2015s provisions on transparency
and congressional oversight will prove to not only exist on

A bilateral effort to pass TPA


would be one of the rare
occasions for Republicans in
Congress to strike a political deal
with the president.
42 http://jones.house.gov/sites/jones.house.gov/files/11.12.13%20Fast%20Track%20
Letter.pdf.
43 http://www.citizenstrade.org/ctc/wp-content/uploads/2013/03/CivilSocietyLetteronFastTrackandTPP_030413.pdf.
44 More information can be found at AFL-CIOs website (the umbrella federation for
U.S. unions), http://www.aflcio.org/Issues/Trade/Trans-Pacific-Partnership-Free-TradeAgreement-TPP.

paper, but will actually mean more meaningful involvement of Congress in the negotiation process.
The European Parliaments Fight for Transparency
and Oversight
The last years have witnessed some important power struggles between the European Parliament and the Council.
The EPs fight for more meaningful impact on TTIP
negotiations can be seen as part of its broader struggle for a
strengthened role within the EUs decision-making process.
Furthermore, there is a precedent for the EPs rejection of
an international trade agreement, with the so called AntiCounterfeiting Trade-Agreement (ACTA) failing to pass in
2012. ACTA also referred to as the anti-piracy agreement originally aimed at improving intellectual property
rights, but when submitted to the Parliament, MEPs feared
the agreement would clear the way for censorship and a
loss of internet privacy. In addition, MEPs claimed that the
agreement had taken them by surprise, that their oversight
and input into negotiation had been insufficient.45
Taking these aspects into consideration, making a prediction of the European Parliaments vote on a TTIP agreement is challenging. MEPs are unlikely to comment on
their voting stance so long as they have not seen the final
negotiation text. In order to pass, TTIP will most notably
need support among the two big political party groups
within the European Parliament: the Conservatives (EPP
Group), which make up 219 seats, and the Social Democrats (S&D Group), which make up 191 seats, out of a total
of 751 seats. Conservatives have been more outspoken in
favor of TTIP than Social Democrats. Given that almost all
EU member states are either governed by conservative or
social democrat parties, members of both party groups will
feel pressure from EU capitals to vote yes as the final vote
on TTIP approaches. Yet, to think TTIP approval by the
European Parliament is a done deal would be premature,
as MEPs are willing to defend their own interests. Furthermore, both party groups face anti-TTIP resentments
among their traditional allies: labor unions, traditionally
aligned with the Social Democrats, fear that TTIP will lead
to a worsening of European workers rights and standards.
European farmers, traditionally siding with the Conservatives, are concerned about granting the United States Euro45 Charles Arthur, Acta down, but not out, as Europe votes against controversial
treaty, The Guardian, July 4, 2012. http://www.theguardian.com/technology/2012/
jul/04/acta-european-parliament-votes-against.

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pean market access and fear the negative consequences of
TTIP on their food production practices.
How the newly elected right wing populist coalition within
the EP, which has taken a rather critical stance on TTIP,
will affect the trade deal is even more unpredictable. Their
votes within the EP will supposedly not be decisive for
TTIP approval, but they do influence public perceptions
of TTIP. If extremist and populists parties grow stronger
in EU member states and TTIP will need to be ratified by
national Parliaments, these parties could be a threat for
TTIP given that any single national Parliament could use
its veto against the final agreement.
Furthermore, the MEPs support for TTIP will greatly
depend on the highly contested investor-state dispute
settlement mechanism (ISDS), whether it will be included
in TTIP, and how it will be designed. This is also a big
concern for national Parliaments. MEPs across party lines
have already announced they perceive ISDS as indispensable for TTIP; and some Social Democrats have said its
exclusion is a precondition for their consent on TTIP.46
Accordingly, ISDS has been the sticking point throughout
the negotiations on the EPs third TTIP resolution. In
his draft resolution, the chair of the INTA committee
proposed wording stating that ISDS is a mechanism that
is not necessary in TTIP given the EUs and the United

If extremist and populists parties


grow stronger in EU member
states and TTIP will need to be
ratified by national Parliaments,
these parties could be a threat for
TTIP.
46 Euractiv, European Parliament committee signals opposition to ISDS, January 13,
2015. http://www.euractiv.com/sections/trade-society/european-parliament-committeesignals-opposition-isds-311189

States developed legal systems.47 While Conservatives are


fighting for a more ISDS-friendly wording, MEPs on the
EPs left say the wording is too soft.
With regard to ISDS, the MEPs vote on the EU-Canada
free trade agreement, which should pass the European
Parliament prior to TTIP, will be decisive for TTIP. CETA
not only touches upon the same regulatory issues as TTIP,
it also envisages the inclusion of ISDS. If EU lawmakers
consent to CETA, disapproval of TTIP based on a rejection
of ISDS would be difficult to justify.
Policy Recommendations
Given TTIPs far-reaching impact on peoples lives in the
United States and Europe, legislators on both sides of the
Atlantic need to get involved in negotiations, irrespective
of whether they are supportive of the agreement or not.
Lawmakers in Congress and the EP should address the
European citizens concerns over a lowering of EU standards and provide balanced information about regulatory
regimes in the United States and in the EU.
In granting TPA, U.S. lawmakers give up their privilege
to amend the final deal on TTIP. At the same time, TPA
legislation holds the potential to strengthen Congressional
oversight. It will be up to the members of Congress to make
use of the consultation provisions TPA-2015 provides.
On the EU side, TTIP negotiations opened the floor for
a new discussion on MEPs involvement in EU trade and
investment agreements. New ways to strengthen the legislators affect on negotiations should be explored. These might
include the necessity to have the European Parliament
grant the negotiation mandate together with the Council.
Such early buy-in would safeguard the EU legislators
steady involvement in the negotiation process and guarantee that they are not thrown off their guard once negotiations are concluded. Furthermore, using Congress as an
example, MEPs could be granted the right to be designated
special advisors on a specific trade agreement and attend
negotiation rounds. On the other hand, Congress could
take the MEPs successful fight for more transparency in
negotiations as an example and ask the U.S. administration for more concessions, similar to the EU-Commissions
transparency initiative.
47 http://www.bernd-lange.de/imperia/md/content/bezirkhannover/berndlange/2015/preliminary_draft_2014-2228_ini__b_lange.pdf.

Europe Program

Policy Brief
Moreover, members of Congress and the EP should expand
their cooperation with regard to TTIP. So far, awareness on
either side of the other legislatures role in the negotiation
process is low. A first step could be to revitalize the already
existing Transatlantic Legislators Dialogue between the
European Parliament and the Congress.
Given similar complaints over a lack of transparency,
members of Congress and the European Parliament could
take a much stronger common stance for increased transparency and inclusiveness of negotiations. Lawmakers on
both sides of the Atlantic should grasp the rare occasion
to engage stakeholders from the whole societal spectrum
in a broad debate on regulatory issues, such as food safety
or environmental standards. Furthermore lawmakers in
the United States and the EU could jointly design common
approaches to a variety of particular challenges TTIP negotiators are faced with, ranging from public procurement, to
the protection of intellectual property rights, to facilitating
the participation of small and medium enterprises in transatlantic trade.
MEPs should also expand their cooperation with national
Parliamentarians. With the high level of public debate on
TTIP, national-level politicians need to get a better understanding of what TTIP is about, regardless of whether or
not they will have to ratify TTIP in the end. National ratification would inevitably lead to slower approval of TTIP,
but at the same time, it would increase the agreements
legitimacy.
Negotiators and legislators in the United States and the
EU should grasp the moment that TTIP offers to jointly
revitalize the transatlantic relationship. Negotiators should
think of legislators on both sides of the Atlantic as partners
and grant them opportunities to affect negotiations that
go beyond symbolic gestures. While taking the failure of
ACTA as a warning signal, Malmstrms decision to grant
MEPs greater access to TTIP negotiation documents was
an important first step. However, transparency alone does
not enable the lawmakers to effectively affect negotiations.

The views expressed in GMF publications and commentary are the


views of the author alone.

About the Author


Maja Ifland is an EU policy advisor for the Green party group within
the German Parliament and is the director of the party groups Brussels office. She was a fellow in GMFs Europe Program in Washington,
DC and Berlin from September to December 2014.

About the Europe Program


The Europe Program aims to enhance understanding of the challenges facing the European Union and the potential implications for the
transatlantic relationship. Analysis, research, and policy recommendations are designed to understand the dichotomy of disintegration
and deepening of the EU and to help improve the political, economic,
financial, and social stability of the EU and its member states. In 2014,
the Europe Program focuses on integration and disintegration in the
EU, the deepening of the euro area, the changing role of Germany in
Europe and the world, as well as challenges in the EUs neighborhood.

About GMF
The German Marshall Fund of the United States (GMF) strengthens
transatlantic cooperation on regional, national, and global challenges
and opportunities in the spirit of the Marshall Plan. GMF does this by
supporting individuals and institutions working in the transatlantic
sphere, by convening leaders and members of the policy and business
communities, by contributing research and analysis on transatlantic
topics, and by providing exchange opportunities to foster renewed
commitment to the transatlantic relationship. In addition, GMF supports a number of initiatives to strengthen democracies. Founded in
1972 as a non-partisan, non-profit organization through a gift from
Germany as a permanent memorial to Marshall Plan assistance, GMF
maintains a strong presence on both sides of the Atlantic. In addition
to its headquarters in Washington, DC, GMF has offices in Berlin,
Paris, Brussels, Belgrade, Ankara, Bucharest, and Warsaw. GMF also
has smaller representations in Bratislava, Turin, and Stockholm.