negotiating ttip: the impact of transparency on informal ... · concomitant of the publicity of the...
TRANSCRIPT
1
Negotiating TTIP:
the Impact of Transparency on Informal Working Practices in EU Trade Negotiations
Paper presented by Evelyn Coremans1, FWO PhD fellow at KU Leuven, for the ECPR Joint Sessions,
April 24-29, 2016, Pisa (Italy).
Work in progress. Please do not cite without author’s permission.
Abstract
Recent experiences with international trade agreements, like the Transatlantic Trade and Investment
Partnership (TTIP), have shown how previously uncontroversial negotiations can suddenly spark large-
scale public protests. People all over the European Union are rallying for more transparency in the
Union's internal decision-making process about such trade negotiations. EU decision-making on trade
agreements has always been a highly secluded process, ranging from expert discussions in technical
working groups to high-level informal lunches and dinners. The reason is the difficult balance actors
need to take into account when deciding at one level something that will impact those they represent
on another level: the balance between responsiveness to that public and using private information
obtained during negotiations. Changes in transparency are expected to affect the dynamics that
determine this balance: the type of public, negotiator behaviour, negotiation mode and practices, and
ultimately negotiation outcomes. This paper aims to understand whether the increased demand and
resulting supply of transparency in the negotiation of TTIP has engendered such a change in
negotiation practices. More specifically, the paper will present the hypothesis that under conditions of
public preference crystallisation, increasing transparency leads to informalisation of decision-making
practices. To do so, it gives an overview of the informal practices of EU decision-making in trade
negotiations and the impact of the recent developments in the TTIP negotiations. The original empirical
material exists of interviews, fieldwork notes, and document analysis probing into former and
contemporary working practices.
Keywords:
European Politics, European Union, Institutions, Negotiation, Trade
1
Introduction
“No man who has taken such a stand before the attentive eyes and ears of the world
can in full public view agree to a compromise without looking like a fool and a knave.
[…] He must defend the position initially taken, and so must the other side. Neither
side being able to retreat or advance, a phony war of positions ensues. […] This
degeneration of diplomatic intercourse into a propaganda match is then, the inevitable
concomitant of the publicity of the new diplomacy.” (Morgenthau, 1954, pp. 519-521).
International negotiation is a secretive process by nature, mainly for the reason illustrated in Hans
Morgenthau’s “vice of publicity”-argument above. During the second half of the 20th century, the
coverage of ‘international relations’ shifted from foreign policy diplomacy to include global trade,
economic, environmental, climate, and development issues. These went beyond pure security
questions and used to be governed almost exclusively on the domestic level. Whereas on the national
level a body of transparency regulations had been developed for discussing these issues, the
international negotiations abided to the standard of confidentiality and state-controlled secrecy of
traditional foreign policy discussions (Roberts, 2004). Public criticism on such secrecy has evolved in
congruence with the rising impact of international decision-making on the domestic level.
This paper aims to understand whether the demand for more transparency in international negotiation
– and its subsequent supply – has affected negotiation practices in the way we might expect from
Morgenthau’s argument. The empirical case – EU trade agreement negotiations – is a prime example of
how international impact on domestic regulations has prompted rising public interest and consecutive
demand for more input and insight into international decision-making processes.
In the days of the General Agreement on Tariffs and Trade (GATT, predecessor of the World Trade
Organisation), decision-making took place in “a matrix of long-term first-name contacts and friendly
personal relationships” between isolated trade officials whom concerned themselves with technical
“low politics” (Weiler, 2000, p. 5). This “ethos of confidentiality” also marked the start of the European
trade policy process in 1957 and remained largely unquestioned by the wider public until the 2000s
(Meunier, 2003). National parliaments are far removed from the EU level decision-making process and
the European Parliament (EP) was intentionally left out of the Treaty trade chapters for almost 50
years.2 European member states have thereby successfully prevented parliamentary influence in trade
policy issues throughout this period, officially “for fear that these would be captured by protectionist
interests” (Woolcock, 2010, p. 7).3 The Council of Ministers’ Trade Policy Committee (formerly known
as the Article 113 or 133 Committee, further on referred to as TPC) was and today still is an extremely
secluded – yet pivotal – arena for Commission-member state communication.
Despite several efforts to open up decision-making, this innate technocratic nature has remained intact
and trade policy continues to be dominated by an inner-circle of national and Commission officials in
2 The first minor appearance of a formal obligation to consult the EP only appeared by 1997 in the Amsterdam Treaty: Art. 113(5) TEC stated that the EP had to be consulted when deciding whether Art. 113 applies to international negotiations and agreements on services and intellectual property. 3 From a realist perspective, trade policy is considered susceptible to collective action problems caused by a diffused set of small winners and a concentrated set of big losers. To prevent the policy process being captured by the latter group, decision-making authority is delegated to executive bureaus whom concern themselves with the technocratic nitty-gritty to produce objective policy outcomes (Meunier, 2003).
2
the surroundings of the TPC and assorted Council committees (Woolcock, 2010). The 1999 Ministerial
Conference of the World Trade Organisation (WTO) in Seattle marked a global shift in the nature of
public interest in international trade policy. Civil protests against specific WTO policies and
globalisation in general reached new dimensions of mass-organisation via the internet (Meunier, 2003;
Roberts, 2004; Stasavage, 2004; Woolcock, 2010; Zimmermann, 2008). At EU level, the Commission
and the Council Presidency started to consult the EP more often and introduced several transparency
initiatives, such as “Consultation Forums” with NGOs in response to their increasing interest in trade
policy decision-making.4 However, the 2001 Access to Documents regulation has not done much to
alleviate the perceived secretiveness surrounding trade agreement negotiations, which has continued
to spark protest amongst NGOs and members of the EP in particular (Abazi & Tauschinsky, 2015). In
2004 the World Wildlife Fund contested the lack of transparency in the TPC and filed a court case
against the Council (UNECE, 2015). Early 2009 several civil society organisations sent a letter to the
Commission, criticising secretive information policies within DG Trade. The trigger was a leaked
internal memo advising the DG’s staff to be more selective about what they write down in e-mails and
documents that may be disclosed later on (Agence Europe, 2009). Also in 2009, member of the
European Parliament (MEP) Sophie In ‘t Veld took to the ECJ when the Council refused access to a
document on the Terrorist Finance Tracking Programme agreement (Hillebrandt & Abazi, 2015).5
The fight for more transparency in international trade negotiations culminated in the EP’s rejection of
ACTA in 2012: criticism on a continued lack of transparency and – not unrelated – the content of the
final agreement led to the first ever veto by the EP on a trade agreement.6 The secluded nature of the
ACTA negotiations fed into misunderstandings that “transformed issues that were too technical to
capture public consciousness into matters lay people could understand and relate to.” (Yu, 2011, p.
1002).
We have seen a similar spiral develop in the case of the Transatlantic Trade and Investment Partership
(TTIP) agreement, currently under negotiation with the US.7 More recently, the Trade in Services
Agreement (TiSA) is also being contested on grounds of procedural secrecy (Viilup, 2015). The
negotiation process for TiSA is similar to that of ACTA, with a number of WTO members plurilaterally
negotiating in an informal format outside the WTO framework (Sauvé, 2014; Yu, 2011). The repeated
calls for more transparency in the negotiations and the process through which the ACTA, TTIP and
TiSA negotiation mandates became public – first leaked and then officially published – are near
identical, as are the justifications for restricting transparency throughout the negotiation process
4 Meunier (2003, p. 83) discusses the “Trade Dialogue with civil society” that was launched by DG Trade in 1998 in more detail. These Civil Society Dialogues have been part of the Commission’s communication strategy ever since (Coffey International Development & European Commission, 2014). Examples of other initiatives since the 2000s are the 2002 Transatlantic Guidelines on Regulatory Cooperation and Transparency, the 2005 European Transparency Initiative, the 2011 Transparency Register, and the launch of the Transparency Portal in 2012. 5 The court case was finally concluded in 2014 in favour of In ‘t Veld, and is seen as an important precedent for future access to document requests in the context of international agreements at large. 6 It was also the first agreement the EP could veto on, as this provision stems from the Lisbon Treaty (Art. 218 TFEU). It must not be forgotten however, that several European governments – starting with Poland – had halted the national ratification process a few months before due to domestic pressures. This made Council ratification of the agreement highly unlikely, meaning things might have turned out differently without these national developments (Dür & Mateo, 2014; Lane, 2012). 7 According to leaked minutes from the Dutch Presidency at the time, the European Commission in February 2010 was already wary of possible precedents the ACTA transparency controversy could set for bilateral trade agreements (Yu, 2011).
3
(Curtin, 2013; Yu, 2011).8 The fact that the US is a partner in all of these negotiations, is not particularly
helpful due to its attitude about opening up access to negotiation documents (European Parliament
INTA Commitee, 2015; Levine, 2011; Woolcock, 2015; Yu, 2011).
The bilateral and plurilateral nature of TTIP, TiSA and ACTA also contributed to the limited degree of
transparency compared to multilateral negotiations in the WTO (Yu, 2011). In the latter case, at least a
somewhat regulated framework for transparency applies (Roberts, 2004; Yu, 2011). A jointly drafted
document by the ACTA negotiation parties from 2009 aptly summarizes the secrecy rationale often
defended for international trade negotiations:
“[I]t is accepted practice during trade negotiations among sovereign states to not
share negotiating texts with the public at large, particularly at earlier stages of the
negotiation. This allows delegations to exchange views in confidence facilitating the
negotiation and compromise that are necessary in order to reach agreement on
complex issues. […] A comprehensive set of proposals for the text of the agreement
does not yet exist. […] It is important to note that discussions are ongoing; new
issues might come up and other issues may finally not be included in the agreement.”
(European Commission, 2009, p. 1, emphasis added).9
This excerpt points at the difficult balance actors need to take into account when deciding at one level
something that will impact those they represent on another level: the balance between responsiveness
to that public and using private information obtained during negotiations. Changes in transparency are
expected to affect the dynamics that determine this balance: the type of public, negotiator behaviour,
negotiation mode and practices, and ultimately negotiation outcomes. This paper aims to understand
whether the increased demand and resulting supply of transparency in the negotiation of TTIP has
engendered such a change in negotiation practices. More specifically, the paper will present the
hypothesis that under conditions of public preference crystallisation, increasing transparency leads to
informalisation of decision-making practices.
The following section will address the terminology used throughout this paper, in order to provide
clarity on the main concepts and definitions. The third section elaborates on the extensive theoretical
framework that has been built around similar questions about public preferences and negotiation
dynamics. The fourth section then goes deeper into the empirics of the research. This is predominantly
based on 16 interviews, the large majority of which took place in Brussels with Council, Commission,
EP and national officials involved in EU trade policy. The respondents were selected based on their
function within the institutions, which means for the Commission officials within DG Trade, from the EP
officials involved the International Trade (INTA) committee, and officials from the Council’s Directorate
for Trade. National representatives originated from Belgium, France, Luxemburg and the United
Kingdom, including both former and current national officials. In terms of substance, the interviews
covered current and pre-Lisbon working practices regarding the negotiation of multi- and bilateral
8 In the case of ACTA the mandate was released after conclusion of the negotiation, whereas (evidently) for TTIP and TiSA the mandate was released beforehand. 9 Similarly, George Mason considered the secrecy of the US Constitutional Convention meetings as essential for averting “mistakes and misrepresentations until the business shall have been completed, when the whole may have a very different complexion from that in which the several parts might in their first shape appear if submitted to the public eye.” (Farrand (1967) as cited in Prat, 2005, p. 869). Stasavage (2004) mentions that Madison followed this same rationale.
4
trade agreements, as well as the current transparency controversy. Answers were cross-referenced
between officials of different institutions and member states. 10 Complementary sources included
institutional documents, meeting notes, agenda’s and invitations, as well as non-participatory
observation in one meeting. Any documents were obtained via the interviewees. Clarifications and
factual corrections were obtained via follow-up contacts with interview respondents. The conclusion
summarizes the findings.
A word on terminology and conceptualisation
Transparency – secrecy
Critique on the secrecy of negotiations is an indication that there is not enough information available
about the ongoing discussions between negotiating partners (Abazi & Tauschinsky, 2015; Meijer,
2015).11 Information can be lacking on the procedures used to coordinate a common EU position, on
whether this common position is in their interest, as well as what negotiation partners are proposing to
the EU during the actual negotiations. In countering such accusations, the EU can therefore provide
(requested) information through documents, live streaming or recordings of meetings, press briefings
or stakeholder meetings (Meijer, Curtin, & Hillebrandt, 2012). Transparency then, can be defined as
“the availability of [regime relevant] information about an actor that allows other actors to
monitor the workings or performance of the first actor.” (Meijer, 2013, p. 430; addition from
Mitchell, 1998, p. 110). The regime relevant information also encompasses information about the
process through which a decision is made.
Transparency has two dimensions: the existence of a certain practice can be known by or hidden from
outsiders, or its existence may be known but not its substance.12 It logically follows that transparency
in existence is a necessary but not sufficient condition for transparency in substance: the precondition
for requesting and accessing information on the content of the decision-making process is knowing
that such information actually exists in a distributable form. On the intersection between transparency
in existence and substance, the transparency issue links up with the formal-informal distinction in
institutional procedures. While not entirely related, whether or not decision-making is perceived on the
public plane as being transparent is partly determined by the use of formal and informal working
practices inside the institution: “where decisions are de facto taken in an inaccessible and
undocumented arena, the ‘essential transparency of the legislative process’ is put at risk.” (Reh, 2014,
p. 826, emphasis original). If there is no collective record of decision-making, it is not possible to
access or request information about those records themselves. Nevertheless, no collective recording
does not in and of itself preclude the possibility of transparency in existence or substance.
10 The limited number of interviews and relatively limited diversity of member state nationalities, combined with a relatively small percentage of formal documentation (inherent to this research subject) constitutes a major limitation of this paper. 11 While transparency and secrecy in reality find themselves on a continuum, for the purpose of clarity they are conceptualised in this paper as a dichotomy. 12 These dimensions have also been referred to as deep and shallow secrecy, respectively (Pozen, 2010).
5
Formal – informal
Definitions of what determines whether decision-making practices can be classified as “informal”
widely differ in strictness and focus, but the majority includes the following two characteristics.13 A
decision-making process or procedure is informal when (a) there is no collective codification of the
exchanges between the participants and (b) exchanges are not publicly enforceable or
sanctioned (Christiansen, Føllesdal, & Piattoni, 2003; Christiansen & Neuhold, 2013; Helmke &
Levitsky, 2004; Héritier, 2012; Mak & van Tatenhove, 2006; North, 1999; Reh, Héritier, Bressanelli, &
Koop, 2011). Note that the formal-informal characteristic refers to the rules circumscribing the practice,
for instance a meeting between trade officials, while the transparent-secret trait refers to a quality of
the practice itself. Formality is exogenously given, whereas transparency is an endogenous quality.
This implies that formality is neither a necessary nor a sufficient condition for transparency: practices
can be formal but still secret in both existence and substance, or they can be informal and fully
transparent in existence.14 Informal practices can become transparent in substance, if participants
decide to share that substance afterwards.
Theoretical framework
Deliberative Democracy and Negotiation theory
Changes in the level of transparency are expected to have an effect on the workings of institutional
procedures guiding negotiations (Cross, 2013; Hagemann & Franchino, 2016; Stasavage, 2004).
Scholarly debate on what this effect may be, is split between two theories that differ in their
assumptions of the nature of the public towards whom the transparency is directed. On the one hand,
deliberative democracy theory departs from a public of public-regarding citizens open to rational
justifications for what objectively and rationally constitutes the best policy. Negotiation theory, on the
other, is based on a conception of the public as constituents who have already made up their minds
about what they consider the best policy outcomes in order to maximise their own interests (Naurin,
2006). These different assumptions determine the formulation of hypotheses on how transparency to
that public affects working practices of negotiations, in particular decision-maker behaviour and
negotiation outcomes.
Deliberative democracy theory argues that transparency in terms of increased visibility of negotiation
proceedings has positive effects on decision-maker behaviour (Cross, 2013). 15 By increasing the
chances of publicity, transparency acts as a “civilising force of hypocrisy”: when making statements in
a transparent environment negotiators are likely to be more responsive to public demands and less
focussed on self-interested purposes (Elster, 1999a, p. 111; see also Cross, 2013; Hagemann &
Franchino, 2016; Heritier, 1999; Naurin, 2006; Risse & Kleine, 2010; Risse, 2000). Increased
13 Contrary to the relationship between transparency and secrecy, the formal-informal distinction is purely dichotomous in nature. 14 Any meeting we can actually classify as formal or informal is essentially transparent in existence, because we first need to know it has taken place or will take place before we are able to identify the rules that circumscribe it. 15 Note that transparency is a necessary but not sufficient condition for publicity and that increased transparency may occur without increased publicity, in which case the effects on negotiator behaviour may not actually unfold (See Naurin (2006) on the difference between transparency and publicity, and Curtin & Meijer (2006) for an initial assessment).
6
transparency therefore reduces the moral hazard problem that comes with principal-agent
relationships – i.e. the risk that the agent pursues his own interests which may diverge from those of
his principals (Stasavage, 2004). If the public can observe the actions of decision-makers, it is easier to
assign accountability to the final outcomes and the consequences thereof, hence promoting “output-
oriented legitimacy” (Scharpf, 1999, p. 6 as cited in Naurin, 2006, p. 190; Prat, 2005; but see Curtin &
Meijer, 2006 for a more critical view). Increased transparency is also linked to higher-quality decision-
making outcomes, as it assures more impartial decision-taking (Naurin, 2006; infra).
Negotiation theory departs from a functionalist understanding of transparency as a possible
impediment to reaching agreement in a context of representatives with diverging interests, aiming to
maximise the interests of their respective publics (Cross, 2013). Negotiation theorists argue that there
is a point where negotiators can be tempted to forego the use of private information in favour of
(demonstrating) responsiveness to public demands which may be (unintentionally) biased or
insufficiently informed (Stasavage, 2004). In those circumstances, transparency results in posturing,
polarization and more uncompromising and self-interested position-taking (Niemann, 2006; Stasavage,
2006). Under conditions of sufficiently strong reputational concerns amongst negotiators, the
polarisation of policy positions may lead to less than Pareto-efficient or suboptimal outcomes or to
failure to reach a decision altogether (Cross, 2013; Stasavage, 2004). In the latter instance, shrinking
win-sets of negotiating parties make any agreement impossible (Hagemann & Franchino, 2016;
Putnam, 1988).
Prat (2005) shows how transparency about the actions of an agent alone – without (sufficient)
transparency about the consequences of those actions – may trigger pandering behaviour by the
agent. Pandering describes “a situation where elected representatives choose policies based on voter
opinion, even if representatives themselves believe that voters are incorrectly informed about their true
interests.” (Stasavage, 2004, pp. 672–673, emphasis added). High transparency may also motivate
negotiators to apply so-called “public commitment strategies”, which increase the transaction costs of
moving away from a publicly-stated win-set of policy positions (or preference strength) (Elster, 1999a,
p. 111). Negotiators may install limitations on their room for manoeuvre based on strength of domestic
interests and thereby deprive themselves of options for reaching common ground (Schelling, 1960).
When negotiators try to demonstrate that they are effectively representing their publics’ interests, they
may become more rigid in their policy positions and resort to posturing at the expense of rationally
justifying policy positions (Hagemann & Franchino, 2016; Naurin, 2006, 2009): “human experience
teaches us that those who expect public dissemination of their remarks may well temper candour with
a concern for appearances and for their own interest to the detriment of the decision-making process.”
(US vs Nixon case ruling, 1974, as cited in Prat, 2005, p. 869).
Arguing, bargaining and informality
The discussion between deliberative democracy and negotiation theorists about the effect of
transparency on the behaviour of negotiators branches out into discussions on the different negotiation
modes that result from those behavioural changes (Elster, 1999b; Risse & Kleine, 2010). From a
negotiation theory perspective, secretive negotiations promote rational arguing (“the transformation of
preferences via the exchange of rational arguments”) over bargaining (“the aggregation of preferences
via the exchange of threats and promises”) (Naurin, 2006, p. 190, also 2009; Elster, 1999b). Hence,
7
closed-door negotiation promotes optimal conditions for problem-solving “characterised by a
cooperative attitude, rich information-sharing and participants candidly speaking their minds” (Naurin,
2006, p. 191; see also Checkel, 2001; Naurin, 2009; Risse & Kleine, 2010). This rationale underlies
several national freedom-of-information-laws with built-in short-term secrecy, regulating restrictions on
access to information before on-going decision-making processes are concluded (Frankel, 2001).
Deliberative democracy theorists have argued the exact opposite: transparency may promote coherent
reason-giving, impartial and other-regarding arguing and prevent self-regarding arguments as well –
earlier referred to as the “civilising force of hypocrisy” (Elster, 1999a, 1999b; Naurin, 2006). One way in
which this situation may present itself is by opening up new types of information sharing amongst
negotiators themselves. Hagemann & Franchino (2016) illustrate that increased transparency through
publication of legislative decision-making records increases credibility of policy positions. They find
that transparency helps overcoming incomplete information problems regarding preference strength
and raises the reputational costs of reneging amongst negotiators. By doing so, it can actually lower
risk of negotiation failure and help screen out marginal amendments.
Discussion on arguing and bargaining dynamics also underlies another major theoretical field that
concerns itself with informal institutions and practices. For instance, informality may serve a similar
purpose of overcoming incomplete information and may also prevent negotiation failure by
accommodating political uncertainty between negotiators (Kleine, 2013). From a purely functionalist
perspective, negotiators may choose informality in order to safeguard the effectiveness and efficiency
(reaching agreement in an acceptable timeframe) of the negotiations: "If you were to stick to the formal
procedures, it would take ten years every time […]. The more there is disagreement, the more the
informal is necessary" (Middlemas, 1995 quoted in Jönsson, Bjurulf, Elgström, Sannerstedt, &
Strömvik, 1998, p. 326–327; see also Christiansen & Neuhold, 2013; Elgström & Smith, 2000).
Informality “allow[s] for changes in timing, extent, and distribution of adjustment costs” related to
formal alternatives and are therefore often considered useful to avoid decision-making deadlock
(Kleine, 2013, p. 308; see also Héritier, 1997).
From a more constructivist viewpoint, the confidentiality of informal negotiations has been found to
promote a “focus on problem solving rather than hard bargaining because ministers do not have the
opportunity to present themselves as defenders of national interests in public.” (Lewis, 2010; Puetter,
2003, p. 117). This observation ties in with arguments provided by negotiation theory, because it
suggests that informality can be a tool for shielding negotiators from being tempted to rely on public
commitment strategies at the expense of sincere private information sharing. In addition, by avoiding
problems of hierarchy and representation, informal negotiation is conducive to open discussion,
development of trust, and policy learning (Elgström & Jönsson, 2000; Puetter, 2003).
When public preferences start to take form, the level of transparency that positively influenced
negotiation effectiveness and efficiency – as predicted by deliberative democracy theory – may
become detrimental. Because publicity on its own does “not eliminate base motives, but forces or
induces speakers to hide them” (Elster, 1999a, p. 111), increasing the chances of publicity under
circumstances of crystallising public preferences may have the perverse effect of rendering
negotiations less transparent as regards revealing genuine negotiation behaviour. When decision-
makers are more certain about the preferences of their audiences (whose consent they will require after
the negotiations are finished), the social norms induced by negotiating in a transparent environment
8
“lose their constraining effect” and negotiators may be more tempted to use rhetorical instead of
rational reasoning to motivate their positions (Risse & Kleine, 2010, p. 714; see also Elster, 1999a, p.
104).16
Issues of balancing the level of transparency with a need for flexibility and quick decision-taking are
already widespread in formal procedures. In informal procedures, it becomes even more problematic.
Because exchanges through formal procedures are collectively codified and publicly enforceable, any
attempt at diverging from transparency provisions is relatively easily detected and sanctioned if
desired: the existence of formal meetings is much easier to uncover, as is the content because it is
collectively codified in documents. But when moving into the informal remits of decision-making,
where exchanges are neither collectively codified nor publicly enforceable, departures from
transparency regulations are much more difficult to expose and subsequently enforce by outsiders.17
Choosing to ‘go informal’ therefore allows decision-makers to circumvent (formal) requirements to
reveal what has been said and by whom – i.e. transparency regulations – and maintain the option of
genuine information exchange.
A few studies touch upon the co-existence of transparency and informality in EU legislative processes
(Cross, 2014; Häge & Naurin, 2013; Shackleton & Raunio, 2003). The majority of these address the
trilogues that are organised within the remit of the co-decision procedure in order to facilitate first
reading conclusion of domestic legislation. 18 The popularity of trilogues is considered a clear
contradiction with the multiple transparency initiatives that have been constructed over the course of
that same timeframe, as well as the efforts to increase openness through EP involvement (Eibauer,
2012; Häge & Kaeding, 2007; Rasmussen, 2011; Reh et al., 2011; Shackleton & Raunio, 2003).
Contrary to popular expectations, increased post-Lisbon involvement of the EP does not automatically
result in more transparent decision-making (Curtin, 2014; Häge & Naurin, 2013; Reh, 2014).
Simultaneous occurrence of transparency-increasing initiatives and informalisation has also been
observed in other contexts. From 1992 to 2006 the Council introduced several transparency measures
under the influence of a Nordic pro-transparency coalition (Hillebrandt, Curtin, & Meijer, 2014). But,
while the 2004 and 2007 enlargement rounds have formalized official COREPER procedures, they also
introduced more informal coordination at the COREPER level through telephone calls, e-mails and
“informal talk in the couloirs of the Justus Lipsius building.” (Lempp & Altenschmidt, 2008, p. 515; see
also Lewis, 2010). On higher decision-making levels, the publication of voting records of Council
16 The social norms that positively influence negotiators in a transparent environment can be divided into three types. The first one is the imperfection constraint: “[b]ecause a perfect coincidence between private interest or prejudice and impartial argument is suspicious, self-interested or prejudiced speakers have an incentive to argue for a position that differs somewhat from their ideal point.” The second norm is a consistency constraint: “once a speaker has adopted an impartial argument because it corresponds to his interest or prejudice, he will be seen as opportunistic if he deviates from it when it ceases to serve his needs.” (Elster, 1999a, p. 104). Thirdly, negotiators may also alter or modify the substance of their proposals, because in a deliberative setting there are powerful norms against the use of threats (which are typically used in bargaining contexts). So threats become warnings, which are subject to a plausibility constraint: “[the speaker’s] validity claims have to be plausible and verifiable.” (Risse & Kleine, 2010, p. 713). 17 That is, if they know that there have been informal exchanges to begin with. 18 The number of trilogues increased to 80% of all new legislation over the past 20 years (Brandsma, 2013; Carrera, Hernanz, & Parkin, 2013; Christiansen & Neuhold, 2013; Häge & Naurin, 2013). This means that, compared to almost 20 years ago (the first trilogues took place in 1995), one informal procedure has now become the norm in early agreement co-decision on EU legislation (Broman, 2008).
9
meetings gives the impression that Council decision-making has become more transparent to those
who disregard the consensual practice of deciding without formal vote (Stasavage, 2006).19
Heremans (2011) considers this confluence of increased transparency and informalisation the result of
an evasion tendency. Naurin refers to it as “decision-making leakage” (Naurin, 2006, p. 192). Based on
observations of the Swedish publicity principle, both authors indicate the possibility of actors resorting
to informal decision-making procedures when pressure for transparency becomes too high:
“Indeed, quite likely the fear of disclosure has already led to a decrease in the ‘paper trail’,
although currently probably still limited to a practice of ‘selective conservation’, i.e. an ex post
screening of the documents which are to be kept as part of a file. However, if also documents
forming part of ongoing procedures would become subject to disclosure, a shift from written to
oral procedures in controversial or sensitive matters seems plausible. Indeed, some have argued
that this is precisely what has happened under the Swedish system, resulting in so-called ‘empty
archives’. Clearly, this would hamper the efficiency of the Commission’s decision-making process
as well as de facto reduce the degree of transparency.” (Heremans, 2011, p. 71, emphasis
original).
Yet, informalisation does not necessarily need to form a threat to transparency. Depending on the
nature of the public to which the transparency is aimed and its preferences, informalisation may
actually limit detrimental effects of transparency – i.e. hiding underlying motives in favour of
demonstrating responsiveness to public demands. Informalisation may also explain why criticisms
continue to be expressed, while transparency is being increased because it complicates access to
decision-making procedures. Based on the above observations and in order to explore the role of
informality at the intersection of deliberative democracy and negotiation theory, the following
hypothesis will be probed:
Under conditions of public preference crystallisation, increasing transparency leads to informalisation of
decision-making practices.
The following section will explore how transparency increased throughout the TTIP negotiation process
– both towards the broader public and regarding inter-institutional access to documents – and how
both acted as drivers for change in terms of inter-institutional working practices.
19 Similar discrepancies have also been observed on the international scene, where new forms of international transparency coincide with informalisation within and outside international organisations (Daase, 2009; Mayer, 2011; Reh et al., 2011).
10
Decision-making in EU trade negotiations: recent changes and effects of TTIP transparency
controversy
Transparency through access to documents
The public protests against ACTA, TTIP and TiSA have re-introduced the momentum of the mid-2000s
and brought trade policy back into the public sphere (Cremona, 2015). The result is an unexpected
shift in paradigm for EU level decision-makers, who are now faced with a new and delicate balancing
exercise of keeping both the negotiation partners and home front satisfied. The Commission as
principal negotiator for the EU has taken unprecedented steps towards a more proactive approach to
transparency, bringing along several institutional changes (Cremona, 2015). The first and most obvious
move towards more transparency concerns the provision of negotiation documents.
In response to public demand, the Commission made several EU position papers, proposals for
negotiation rounds and matching layman summaries freely available on its website since February
2015, except for those on tariffs, services, investment and procurement (European Commission,
2014).20 In addition, the Commission started a much more proactive approach in explaining content of
ongoing negotiations by publishing factsheets, brochures and videos (European Commission, 2015).
The final TTIP text will also be published online before legal scrubbing and translation (Mungengová,
2016). While these initiatives were aimed at increasing transparency and thereby understanding of the
agreement under negotiation, they have not had the desired effect. The perceived seclusion of the TTIP
negotiations has led to the same kind of negative public perception as existed over the ACTA
agreement, even though public transparency has never been higher. Since October 2014, the Stop
TTIP campaign has collected 3,417,964 signatures (“Stop TTIP: European Initiative against TTIP and
CETA,” 2016). Access to information about what is being negotiated has promoted crystallisation of
public opinion and continued protests have enlarged public pressure on national officials and MEPs
(Agence Europe, 2015a, 2015b, 2015c, 2015d; Zalan & Teffer, 2015).
The main reason for the EP’s current activism in trade matters may lie exactly in this growing
politicisation of the EU’s trade agenda, which makes it a much more interesting area for maximising its
competences (Interview 13, 15, 15).21 Because they are now more certain about the preferences of
their audiences, the social norms induced by negotiating in a transparent environment “lose their
constraining effect” and negotiators – who are concerned about their reputations – may be more
tempted to use rhetorical instead of rational reasoning to motivate their positions (Risse & Kleine, 2010,
p. 714; see also Elster, 1999a, p. 104). Following this line of argument could also explain why MEPs
continue to criticise their ‘limited’ access to information about politically salient trade negotiations while
there have been significant changes in the amount, frequency and manner in which documents are
shared inter-institutionally, especially between Commission and EP (Interview 7, 8, 15).
By opening up access to documents for MEPs, the Commission counted on the mechanisms of
representative democracy to appease public criticisms of secrecy and seclusion. By 2010 the
20 Which is still a good year and a half after the mandate was given and the start of negotiations in June and July 2013, respectively. 21 This politicisation is also affecting the European External Action Service and the European Council’s involvement in trade negotiations (Interview 15). It may also explain the EP’s focus on TTIP and TiSA, while the Japan agreement is equally important in terms of economic impact.
11
Commission already shared all trade-related documents that are transmitted to the TPC, with the INTA
Committee as well (OJ 2010, L304). From December 2014 onwards the Commission had extended
access to TTIP documents originating in the Commission and classified as ‘EU Restricted’ to all MEPs
in reading rooms (Malmström, 2015). Regarding the so-called “consolidated TTIP documents”
containing textual proposals from both sides, Parliament and Commission agreed that the INTA Chair,
Vice-Chairs, Coordinators, Rapporteur and Shadow-Rapporteurs for US, as well as the Chair and
Rapporteur of other relevant committees – as long as the documents concern their competence –
could access them in a secure reading room (European Parliament INTA Commitee, 2015). By
December 2015, access to confidential TTIP documents including the consolidated texts was
extended to all MEPs (European Parliament, 2015). Starting from 2016, national reading rooms for
national parliamentarians are being created, next to the ones that were already accessible only to
national government officials in US embassies. Germany was the first to install such a reading room for
parliamentarians and the UK plans to do the same soon (Soubry, 2016; von Daniels & Orosz, 2016).
Despite the detailed and restrictive security rules surrounding these new transparency provisions
(especially since the inclusion of the consolidated texts), the mere fact that these reading rooms even
exist and that MEPs and national parliamentarians have access to negotiation texts is a complete
overhaul compared to how trade negotiations were conducted previously. However, access to
documents is only a small part of inter-institutional cooperation on trade policy. An example of the
limits to document regulations can be found in a complaint by the World Wildlife Fund of 2004, where
the NGO filed a court case against the Council contesting the lack of transparency in the TPC. The
complaint was dismissed in 2007 partly because the requested information simply did not exist in
written form (UNECE, 2015). The Court concluded that an institution is only obliged to provide
information contained within documents: “[…] access to information — within the meaning of [the
Council v Hautala] judgment — may be granted only if that information is contained within documents,
which presupposes that such documents exist” (Case T-264/04, §76; see also UNECE, 2015). In
addition, the institution is not obliged to draft such documents about meetings when these are of an
informational nature: “[t]he purely informative nature of that item at the meeting and the fact that it did
not call for any specific implementing measure explain why it was not considered necessary to minute
it and why the item was not recorded in a summary report or other subsequent document of the
Committee.” (Case T-264/04, §62). In order to address the main question of this paper (whether
increased transparency in EU trade negotiations has engendered a change in negotiation practices and
if so, how?), a proper overview of the different working practices outside access to documents is
therefore imperative.
Working practices: below the waterline
Whenever the EU negotiates a trade agreement the Commission acts as the main negotiator on behalf
of the member states, represented collectively through the Council of Ministers. The Council needs to
authorise the initiation of negotiations, may issue negotiation directives, and has a decisive vote on the
agreement once the negotiations have ended. Since the Lisbon Treaty entered into force in 2009 the
EP also has this formal right to veto any concluded trade agreement, which they used with ACTA
(supra). As said, the main decision-making about the EU’s common position takes place in the TPC.
This committee meets in three formats: full members (biweekly), deputies (weekly) and services &
12
investment (fortnightly) (for a much more elaborate mapping of the TPC, see Adriaensen, 2016;
Johnson, 1998). These are the broad guidelines, as determined by the Lisbon Treaty (Art. 207 and 218
TFEU). If we zoom in on how the system works in practice, it quickly becomes clear that Treaty
arrangements and even document sharing systems are merely the tip of the iceberg. As almost 80% of
the issues are already agreed upon at the TPC level, I will focus on the TPC and lower levels for
Commission-Council and Commission-member state communication, and the INTA committee and
lower levels for Commission-EP coordination (Interview 12).
With regards to Council-Commission communication a range of communication takes place in
preparation of the weekly TPC deputies meeting, where the majority of decision-making takes place
(Interview 12, 15). After the previous meeting on Friday, the agenda for the coming week is discussed
and sent to the Presidency and Council Secretariat (Unit 1A) for approval. On the Monday after, it is
sent via e-mail to the member states, who can then suggest changes or adaptations should they wish
to do so. This happens via e-mail or phone. On Wednesdays the Presidency and Council Secretariat
go over the agenda point-by-point and member states continue to call in whenever they would like to
discuss an additional point. On Thursdays DG Trade meets the Presidency and Council Secretariat in
the Council building in so-called “briefing meetings”, which are organised by the Presidency to
communicate any last alterations of the agenda. At these meetings, the Council Secretariat may advise
the Presidency on some last-minute member state requests, issues that may potentially pose
problems, objections and possibly legal aspects that may come up during the actual meeting the next
day (Interview 12, 15). Along the way, the Council Secretariat can also communicate any important
offensive or defensive member state interests directly to the Commission. This preparation process is
very much built upon personal relations and friendships crossing institutional borders, and daily
communications happen primarily over the phone or via e-mail (Interview 12, 13). These are based on
“extremely good working relations” between the Council Presidency, Secretariat and DG Trade as they
share the same basic objective: facilitating the Commission in negotiating with external partners and
the Council in taking decisions (Interview 15).
DG Trade also communicates directly with the member states on a bilateral and collective basis.
Bilateral meetings usually occur on demand from member states, for instance when they do not want
other member states to know about a certain national position (Interview 12). It is their task to defend
their own national economic structure, which means that their interests may clash with those of other
member states. Hence, member states often phone DG Trade before a TPC meeting to elaborate on
the reasoning behind a position. Moreover, they may also call to inform the Commission about a
position they will defend in the upcoming TPC but which in reality is not as inflexible as they may have
it appear (Interview 12). Again, daily contacts between DG Trade officials and member state
representatives result in personal ties and amities: “For us [DG Trade officials], member states are the
friend we see every week, whose birthday party we attend on Sunday” (Interview 12).
Collective meetings between Commission and member states are a more recent phenomenon in their
more institutionalised form. Informal sub meetings of the TPC organised were used during the Uruguay
Round for ground clearing, clarifying issues and looking for technical solutions (Interview 7, 8, 9). These
enabled the Commission to judge what was likely to be acceptable to member states and what was
not. Today, this function has been institutionalised – bear in mind that this does not equal formalisation
– and taken over by what are now called “Informal Technical Meetings” or ITMs in EU jargon (Kleimann,
13
2011; Coremans & Kerremans, forthcoming). ITMs differ from the TPC in that they are organised by DG
Trade (whereas the TPC is a Council-run body). ITMs are organised whenever the Commission senses
a need for a collective, rather than a bilateral, discussion on some detailed and technical issues. They
do not have any legal basis, register, attendance lists, formal invitations or agendas, minutes, written
reports or press briefings afterwards (Interview 1, 11). 22 Even though all are invited, there is no
obligation for member states to attend. ITMs were first introduced during negotiations on the EU-Korea
free trade agreement (mid-2000s) and have since become one of the main contact points between
member states and Commission for ongoing international trade negotiations.23 The main reasons for
the popularity of ITMs are the increased technicality and scope of trade policy, the increased number
of trade negotiations going on simultaneously, the 2004 and 2007 enlargements (which have made the
obligatory tour de table in the TPC a much lengthier process), a need for a more flexible negotiation
format, and finally the demand for more informal discussions from member states who do not want
their words to be traceable (Interview 11, 12, 13).
In particular the enlargements and the increased number of trade agreements caused capacity issues
in the already jam-packed TPC in terms of time shortage and limited scope for dialogue (Interviews 1,
3, 5, 8, 9, 10, 11). As a result, the TPC has become a forum where formal national statements are
repeated over and over, rather than one where views and expertise are genuinely exchanged
(Interviews 2, 3, 10, 11). As this is creating a major efficiency problem, ITMs are nowadays “the only
way to deal with the complex issues we’re faced with in trade policy” (Interview 3). Member states
consider ITMs crucial for having a better overview of what is going on in the policy process and
assuring that their voice is heard (Interview 4, 5, 10): “a few years ago, it was sufficient to attend only
the TPC. Now you cannot afford to do this anymore.” (Interview 3). Before ITMs, “the bulk of informal
meetings tended to be smaller - bilateral or trilateral – and they happened in offices, restaurants, and
margins of meetings.” (Interview 8). While those informal channels have not disappeared, successive
enlargements and more complex issues in EU trade policy have forced the Commission to develop
more “institutionalized” informal settings (Interviews 7, 8, 11).24
A Council official remarked that there may be a risk of ITMs replacing the discussions that used to take
place in the formal TPC (Interview 15). Even though no actual decisions are taken at ITMs, they have
become such a prominent part of trade policy that important parts of the decision-making process may
take place there whilst they should have taken place in formal arenas of which traceable documents
exist. While member states are vigilant in having official and written reports whenever decisions have
been taken – to make sure their “achievements” cannot be rolled back, there is a risk of real debating
slowly shifting from the formal TPC to informal ITMs and other formats (Interview 14, 15). The
frustration some member states showed with the bargaining dynamics in the TPC also indicates that
TPC meetings tend to suffer more and more of posturing and other public commitment strategies.
22 The informal nature distinguishes ITMs from any other coordination format in EU trade policy, including the Commission’s ‘expert groups’, which do have a register and to which also the MEPs need to be invited (Interviews 1, 11). 23 Around four to six ITMs are organised per month nowadays, depending on the frequency of the on-going external negotiations. It is expected that this number will continue to increase, as the TTIP negotiations on regulatory cooperation, government procurement and intellectual property rights have already shown (Interviews 1, 3, 10, 11) 24 In addition, bilateral meetings do not aim to seek agreement. They provide assurance more than anything else (Interview 10).
14
Aside from the recent addition of ITMs, the modes of communication between Council, Commission
and member states – and their effect on the decision-making process – have remained relatively stable
over the years. What is new since the Lisbon Treaty and more particularly the start of the TTIP
negotiations, however, is the increased impact of the European Parliament on the internal coordination
process. The Lisbon Treaty has installed onto the Commission the formal obligation of immediately and
fully informing the EP at all stages of ongoing negotiations (Art. 218 TFEU).25 Formal communication
happens through the EP’s Committee for International Trade (INTA) formal reporting and is framed by
the 2010 Framework Agreement, which includes the provision that all documents that go to the
member states are also simultaneously sent to INTA (OJ 2010, L304). DG Trade also distributes
documents and information via e-mail before voting in the plenary takes place (Interview 14). Every
month a table outlining upcoming agreements is sent out, as well as regular e-mails on press releases
in order to make sure the EP has every possible snippet of information on ongoing negotiations and is
able to prepare for upcoming votes. Next to the inter-institutional traffic of documents, the INTA
secretariat organises formal meetings with DG Trade on a monthly basis (Interview 16). This is about as
far as formal regulations go with respect to including the EP in the negotiation process. However,
beneath them lies an array of informal working practices and contacts that go far beyond any formal
obligations as stated in the Treaties.
First, because of the strict meeting schedules of both the EP plenary and the INTA Committee itself,
Commission-EP communication takes place in the more flexible “monitoring groups” (Interview 13, 14;
see also Brown, 2013; European Parliament INTA Commitee, 2015; Kleimann, 2011; Krajewski, 2013).
These consist of the standing rapporteur responsible for the respective trade agreement or negotiation,
the respective standing shadow rapporteurs and their assistants, and are open to all MEPs (European
Parliament INTA Commitee, 2015). The monitoring group on the US (covers TTIP) also includes
rapporteurs from other EP committees, which is a unique feature. 2015 attendance to the monitoring
group on the US was more than double the amount of the next-most-popular monitoring group on
TiSA. Interestingly, there have also been almost twice as much monitoring groups on the US than on
TiSA and Japan (Interview 16). In addition to information provided to the monitoring groups, DG Trade
also organises technical briefings with MEPs for in-depth explanations (Interview 14). Arrangements for
technical briefings are often made in cafeterias or hallways, should the responsible DG Trade official
meet an EP colleague there (Interview 14). They come closest to the ITMs organised with member
states in terms of content, as monitoring groups tend to be organised on a regional basis rather than
on a single negotiation. Technical briefings also have lower participation rates because of their
technical topics. Finally, there is also a “Schultz TTIP coordination group”, which includes more or less
the same people as the US monitoring group as well as the EP President and the trade Commissioner,
and meets once every two to three months.
25 In practice, this was already enshrined in informal agreements. In 1973 the Council under the Presidency of Dutch Foreign Affairs Minister Tjerk Westerterp accepted the possibility of an EP debate prior to the opening of trade negotiations, to “confidentially and unofficially” inform the competent parliamentary committee of the substance of the agreement after the completion of the negotiations but before signing, and to “acquaint the European Parliament with the content of such agreements, after their signing and before their conclusion.” (Commission of the European Communities, 1973a, p. 90, see also 1973b). Since 1995 the Commission informs the competent parliamentary committee of the draft recommendations relating to negotiating directives. The same 1995 Code of Conduct also confirmed that the Commission would keep the EP regularly and fully informed of the progress of negotiations (OJ 1995, No. C89).
15
The members of monitoring groups and participants to the technical briefings function as interlocutors
for the Commission’s communication with the EP as a whole, and the meetings allow for much more
flexible yet regular contacts between DG Trade and MEPs (Interview 11, 14). They provide a much
higher degree of specialisation and knowledge of MEPs regarding the inevitable technicalities that
come along in decision-making on trade agreements. This is an added value that should not be
underestimated, considering that the INTA Committee evolved from a small committee with a low
number of members to one of the most powerful committees in just a few years (Interview 14).26 As far
as communication with third countries is concerned, it has even surpassed the Foreign Affairs (AFET)
Committee.
While informal exchanges between Commission, member states and EP have a long history, the TTIP
negotiation process has marked a breaking point in existing practices and introduced new ones as the
need presented itself. Even though ITMs have been common practice for Commission-member state
communication since the EU-South Korea negotiations, they are more and more being seen by
member states as forums where they can be more open as regards their true preferences and
preference strength. They have become a way out of complicated negotiation situations of posturing
and bargaining, with member states asking for informal meetings when they do no (yet) want their
positions to be codified and possibly up for disclosure later on.
Upgraded EP involvement since the Lisbon Treaty was expected to generate more transparency in
decision-making on international trade negotiations. And indeed, it is beyond doubt that the growing
assertiveness of the EP in external trade policy is aided by a formal recognition of its role in the Lisbon
Treaty. Based on threats of using its veto powers, it has obtained access to a wide range of policy
documents it did not have access to before, thereby extending inter-institutional transparency.
Simultaneously, in-camera sessions of INTA committee, monitoring groups and technical briefings
have increased significantly since start of the TTIP negotiations. Through these multiple informal
communication channels, EP is informed of current events in trade negotiations to a much higher
degree and in much greater detail than foreseen by formal Treaty arrangements or even via access to
documents.27
As more confidential documents are becoming available to more and more people (from Commission
and Council officials, over MEPs from the INTA Committee, to all MEPs and now even national
parliamentarians in national reading rooms), the cercle intime is being stretched to the limit. But inner
circles do not simply expand. Whenever they allow more people in, they change character and new
inner circles start to form within the now expanded “inner” circle (Interview 7, 8, 9). As EU trade policy
decision-making now incorporates more members with more knowledge of what is being negotiated,
the findings of this paper have indicated that new, informal inner circles are being formed within the
extended circle of confidants.
26 The fact that the previous chair was a Portuguese MEP (Vital Morreira), whereas now the chair is a prominent German MEP (Bernd Lange), is quite telling for this evolution. 27 But despite having access to TPC documents, the TPC remains a “black hole” for EP officials, as TPC documents only contain information about the three or four main points brought up by member states that usually are already known sensitivities regardless (Interview 16).
16
Conclusion
This paper started out from the question whether decision-making procedures on EU trade agreements
have changed in any way as a result of the public demand for transparency. The answer is twofold. On
the one hand, working practices on the ground have continued to function as they have always done.
Personal relations, diplomatic assessments and compromise-searching still are the building blocks for
constructing a common EU position. Meetings are still arranged in corridors and canteens, and
coalitions made over coffee still impact position-taking in formal arenas. Informal procedures and
practices which are prone to being less transparent and more restricted to outsiders are still
abundantly prominent, because “it is easier to find a solution if you don’t bring the discussion too
much in the open” (Interview 7, 8, 9, 15). And maybe most importantly, informal communications are
crucial for anticipating problems upstream and testing the water on whether or not agreement is within
reach at the time the issue reaches formal levels of decision-making (Interview 7, 8, 9, 11).
On the other hand, the current rise in public interest and politicisation of trade policy does affect the
way in which information flows between institutions. Interviews revealed evidence that the rigid
posturing by member states in formal negotiation formats such as the TPC is off-set by more flexible
positions in informal spheres such as ITMs. But the most obvious illustration is the intensified
communication between the DG Trade and the EP’s INTA Committee. The Commission makes sure it
stays on the safe side by providing whatever information it can to the EP, so much so that the EP’s
informal influence far surpasses any of its formal powers. But this increased inclusion into the inner
circle of trade policy making also comes at a cost: it means the EP will need to play by existing rules of
the game. This is already visible in the rules circumscribing the use of reading rooms for confidential
documents.
The risk that an increase of public access to documents will lead to less transparency in the end – as
certain actors may not want to put certain things down in writing for fear of possible leaks – cannot be
dismissed altogether (Interview 15). In trade, there will always be someone having to give in
somewhere, who does not want to be thrown to the political wolves for doing so. Yet, it is in the
interest of public officials to be as open as is reasonably possible to prevent deliberate
misunderstanding of facts by those who do not want a particular policy objective to be secured and to
avoid people from developing suspicions of sinister goings-on that are not happening at all: “if you
resist to transparency demands the information will be dragged out of you in stages, which makes it all
look much worse than it actually is.” (Interview 9).
17
References
Abazi, V., & Tauschinsky, E. (2015). Reasons of Control and Trust: Grounding the Public Need for Transparency in the European Union. Utrecht Law Review, 11(2), 78–90.
Adriaensen, J. (2016). National Administrations in EU Trade Policy. Palgrave Macmillan UK. http://doi.org/10.1057/978-1-137-54767-5
Agence Europe. (2009, May 15). Civil society organisations critical of DG Trade’s secretive information policy. Bulletin Quotidien Europe. Brussels.
Agence Europe. (2015a, January 15). Commission accused of ignoring opposition to TTIP. Bulletin Quotidien Europe. Brussels.
Agence Europe. (2015b, March 7). Deeply rooted distrust of TTIP in civil society. Bulletin Quotidien Europe. Brussels.
Agence Europe. (2015c, July 8). Parliament remains hostile to TTIP. Bulletin Quotidien Europe. Brussels.
Agence Europe. (2015d, December 11). Resistance to TTIP remains strong. Bulletin Quotidien Europe. Brussels.
Brandsma, G. J. (2013). Bending the rules: arrangements for sharing technical and political information between the EU institutions. European Integration Online Papers, 17(1), 1–22. http://doi.org/10.1695/2013008
Broman, M. (2008). Taking Advantage of Institutional Possibilities and Network Opportunities. Analyzing Swedish Strategic Action in EU Negotiations. Lund Political Studies, Lund.
Brown, C. (2013). Changes in the Common Commercial Policy of the European Union after the Entry into Force of the Treaty of Lisbon: A practitioner’s perspective. In M. Bungenberg & C. Herrmann (Eds.), Common Commercial Policy after Lisbon (pp. 163–183). Berlin-Heidelberg: Springer-Verlag. http://doi.org/10.1007/978-3-642-34255-4
Carrera, S., Hernanz, N., & Parkin, J. (2013). The “Lisbonisation” of the European Parliament: Assessing progress, shortcomings and challenges for democratic accountability in the area of freedom, security and justice. CEPS Paper in Liberty and Security in Europe (Vol. 58).
Case T-264/04, WWF European Policy Programme v Council, (2007) ECR II-00911. Para. 76. Retrieved from http://curia.europa.eu/juris/celex.jsf?celex=62004TJ0264&lang1=en&type=TXT&ancre=
Checkel, J. T. (2001). Why Comply ? Social Learning and European Identity Change. International Organization, 55(3), 553–588.
Christiansen, T., Føllesdal, A., & Piattoni, S. (2003). Informal governance in the European Union: an introduction. In T. Christiansen & S. Piattoni (Eds.), Informal governance in the European Union (pp. 1–21). Cheltenham: Edward Elgar.
Christiansen, T., & Neuhold, C. (2013). Informal Politics in the EU. JCMS: Journal of Common Market Studies, 51(6), 1196–1206. http://doi.org/10.1111/jcms.12068
Coffey International Development, & European Commission. (2014). Evaluation of DG TRADE’s Civil Society Dialogue in order to assess its effectiveness, efficiency and relevance. Retrieved from http://trade.ec.europa.eu/doclib/docs/2014/december/tradoc_152927.pdf
Commission of the European Communities. (1973a). Bulletin of the Europan Communities. Brussels: Secretariat of the Commission of the European Communities.
Commission of the European Communities. (1973b). Practical Measures to Strengthen the Powers of Control of the Parliament and to Improve Relations between the Parliament and the Commission COM (73) 999. Brussels.
Coremans, E., & Kerremans, B. (Forthcoming). Fitting Informality into the Principal-Agent Model: The Limits of Information Asymmetry. In T. Delreux & J. Adriaensen (Eds.). The Principal-Agent Model and the European Union (Palgrave Studies in European Union Politics). London: Palgrave.
Cremona, M. (2015). Guest Editorial: Negotiating the Transatlantic Trade and Investment Partnership (TTIP). Common Market Law Review 52, 351–362.
Cross, J. P. (2013). Striking a pose: Transparency and position taking in the Council of the European Union. European Journal of Political Research, 52(3), 291–315. http://doi.org/10.1111/1475-6765.12000
18
Cross, J. P. (2014). The seen and the unseen in legislative politics: explaining censorship in the Council of Ministers of the European Union. Journal of European Public Policy, 21(2), 268–285. http://doi.org/10.1080/13501763.2013.830354
Curtin, D. (2013). Official Secrets and the Negotiation of International Agreements: Is the EU Executive unbound? Common Market Law Review, 50, 423–458.
Curtin, D. (2014). Overseeing Secrets in the EU: A Democratic Perspective. JCMS: Journal of Common Market Studies, 52(3), 684–700. http://doi.org/10.1111/jcms.12123
Curtin, D., & Meijer, A. (2006). Does Transparancy Strengthen Legitimacy? Information Policy, 11, 109–122.
Daase, C. (2009). Die Informalisierun internationaler Politik: Beobachtungen zum Stand der internationalen Organisation. In D. Dingwerth, D. Kerwer, & A. Nölke (Eds.), Die organisierte Welt: Internationale Beziehungen und Organisationsforschung (pp. 289–307). Baden-Baden: Nomos.
Dür, A., & Mateo, G. (2014). Public opinion and interest group influence: how citizen groups derailed the Anti-Counterfeiting Trade Agreement. Journal of European Public Policy, 21(8), 1199–1217. http://doi.org/10.1080/13501763.2014.900893
Eibauer, J. (2012). Blessing or curse? The effects of transparency on the European Commission’s success at the international ACTA negotiations (No. 14).
Elgström, O., & Jönsson, C. (2000). Negotiation in the European Union: bargaining or problem-solving? Journal of European Public Policy, 7(5), 684–704. http://doi.org/10.1080/13501760010014902
Elgström, O., & Smith, M. (2000). Introduction: Negotiation and policy-making in the European Union – processes, system and order. Journal of European Public Policy, 7(5), 673–683. http://doi.org/10.1080/13501760010014894
Elster, J. (1999a). Deliberation and Constitution Making. In J. Elster (Ed.), Deliberative Democracy (pp. 97–122). Cambridge: Cambridge University Press.
Elster, J. (1999b). Introduction. In J. Elster (Ed.), Deliberative Democracy (pp. 1–18). Cambridge: Cambridge University Press.
European Commission. (2009). The Anti-Counterfeiting Trade Agreement - Summary of Key Elements Under Discussion. Retrieved from http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145271.pdf
European Commission. (2014). Communication to the Commission concerning transparency in TTIP negotiations. Strasbourg.
European Parliament. (2015). All MEPs to have access to all confidential TTIP documents. European Parliament.
European Parliament INTA Commitee. (2015). Comparative study on access to documents (and confidentiality rules) in international trade negotiations. EP/EXPO/B/INTA/FWC/2013-08/lot7/06.
Frankel, M. (2001). Freedom of Information: Some International Characteristics. London: The Campaign for Freedom of Information. Retrieved from www.cfoi.org.uk
Häge, F. M., & Kaeding, M. (2007). Reconsidering the European Parliament’s Legislative Influence: Formal vs. Informal Procedures. Journal of European Integration, 29(3), 341–361. http://doi.org/10.1080/07036330701442356
Häge, F. M., & Naurin, D. (2013). The effect of codecision on Council decision-making: informalization, politicization and power. Journal of European Public Policy, 20(7), 953–971. http://doi.org/10.1080/13501763.2013.795372
Hagemann, S., & Franchino, F. (2016). Transparency vs efficiency: A study of negotiations in the Council of the European Union. European Union Politics 0(0). http://doi.org/10.1177/1465116515627017
Helmke, G., & Levitsky, S. (2004). Informal Institutions and Comparative Politics: A Research Agenda. Perspectives on Politics, 2(4), 725–740. Retrieved from www.jstor.org
Heremans, T. (2011). Public Access to Documents: Jurisprudence between Principle and Practice (Between jurisprudence and recast) (No. 50).
Heritier, A. (1999). Elements of democratic legitimation in Europe: an alternative perspective. Journal of European Public Policy, 6(2), 269–282. http://doi.org/10.1080/135017699343711
19
Héritier, A. (1997). Policy-making by subterfuge: interest accommodation, innovation and substitute democratic legitimation in Europe - perspectives from distinctive policy areas. Journal of European Public Policy, 4(2), 171–189. http://doi.org/10.1080/13501769709696337
Héritier, A. (2012). Formal and informal institutions in the EU’s legislative process. In T. Christiansen & C. Neuhold (Eds.), International Handbook on Informal Governance (pp. 335–353). Cheltenham: Edward Elgar.
Hillebrandt, M. Z., & Abazi, V. (2015). The legal limits to confidential negotiations: Recent case law developments in Council transparency: Access Info Europe and In ‘t Veld. Common Market Law Review, 52, 825–846.
Hillebrandt, M. Z., Curtin, D., & Meijer, A. (2014). Transparency in the Council of Ministers of the EU: An Institutional Approach. European Law Journal, 20(1), 1–20.
Johnson, M. (1998). European Community Trade Policy and the Article 113 Committee. London: Selwood Printing Ltd.
Jönsson, C., Bjurulf, B., Elgström, O., Sannerstedt, A., & Strömvik, M. (1998). Negotiations in Networks in the European Union. International Negotiation, 3, 319–344. Retrieved from http://heinonline.org
Kleimann, D. (2011). Taking Stock : EU Common Commercial Policy in the Lisbon Era (No. 346).
Kleine, M. (2013). Informal Governance in the European Union. How Governments Make International Organisations Work. Ithaca: Cornell University Press.
Krajewski, M. (2013). New Functions and New Powers for the European Parliament: Assessing the Changes of the Common Commercial Policy from the Perspective of Democratic Legitimacy. In M. Bungenberg & C. Herrmann (Eds.), Common Commercial Policy after Lisbon (pp. 67–85). Berlin-Heidelberg: Springer-Verlag.
Lane, H. H. (2012). The Realities of the Anti-Counterfeiting Trade Agreement. Tulane Journal of International and Comparative Law and, 21, 183–204.
Lempp, J., & Altenschmidt, J. (2008). The Prevention of Deadlock through Informal Processes of “Supranationalization”: The Case of Coreper. Journal of European Integration, 30(4). http://doi.org/10.1080/07036330802294813
Levine, D. S. (2011). Transparency Soup: The ACTA Negotiation Process and “Black Box” Lawmaking. American University International Law Review, 26(3), 811–837.
Lewis, J. (2010). How institutional environments facilitate co-operative negotiation styles in EU decision-making. Journal of European Public Policy, 17(5), 648–664. http://doi.org/10.1080/13501761003748591
Mak, J., & van Tatenhove, J. (2006). Introduction: Informality in a future EU. Perspectives on European Politics and Society, 7(1), 1–7. http://doi.org/10.1080/15705850600839439
Malmström, C. (2015). Question for written answer E-000002/15 to the Commission. Louis Aliot (Nl), 05/01/2015. European Parliament.
Mayer, S. (2011). Embedded Politics, Growing Informalization? How NATO and the EU Transform Provision of External Security. Contemporary Security Policy, 32(2), 308–333. http://doi.org/10.1080/13523260.2011.590356
Meijer, A. (2013). Understanding the Complex Dynamics of Transparency. Public Administration Review, 73(3), 429–439. http://doi.org/10.1111/puar.12032.Understanding
Meijer, A. (2015). Government Transparency in Historical Perspective: From the Ancient Regime to Open Data in The Netherlands. International Journal of Public Administration, 38(3), 189–199. http://doi.org/10.1080/01900692.2014.934837
Meijer, A., Curtin, D., & Hillebrandt, M. Z. (2012). Open government: connecting vision and voice. International Review of Administrative Sciences, 78(1), 10–29. http://doi.org/10.1177/0020852311429533
Meunier, S. (2003). Trade Policy and Political Legitimacy in the European Union. Comparative European Politics, 1(1), 67–90. http://doi.org/10.1057/palgrave.cep.6110000
Mitchell, R. B. (1998). Sources of Transparency: Information Systems in International Regimes. International Studies Quarterly, 42(1), 109–130.
Mungengová, J. (2016). The EU Enhanced Transparency in TTIP: A Successful Shift of Paradigm. Retrieved March 1, 2016, from https://cerim.blogactiv.eu/2016/03/01/the-eu-enhanced-
20
transparency-in-ttip-a-successful-shift-of-paradigm/
Naurin, D. (2006). Public deliberation - a contradiction in terms? Transparency, deliberation and political decision-making. Statsvetenskaplig Tidskrift, 108(2), 190–197.
Naurin, D. (2009). Most common when least important: deliberation in the European Union Council of Ministers. British Journal of Political Science, 40(01), 31. http://doi.org/10.1017/S0007123409990251
Niemann, A. (2006). Beyond Problem-Solving and Bargaining: Genuine Debate in EU External Trade Negotiations. International Negotiation, 11(3), 467–497. http://doi.org/10.1163/157180606779155246
North, D. C. (1999). Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press.
Pozen, D. E. (2010). Deep secrecy. Stanford Law Review, 62(2), 257–339. Retrieved from http://ssrn.com/abstract=897753
Prat, A. (2005). The Wrong Kind of Transparency. The American Economic Review, 95(3), 862–877. http://doi.org/10.1257/0002828054201297
Puetter, U. (2003). Informal Circles of Ministers: A Way Out of the EU’s Institutional Dilemmas? European Law Journal, 9(1), 109–124. http://doi.org/10.1111/1468-0386.00172
Putnam, R. D. (1988). Diplomacy and Domestic Politics: The Logic of Two-Level Games. International Organization Foundation, 43(3), 427–460.
Rasmussen, A. (2011). Early conclusion in bicameral bargaining: Evidence from the co-decision legislative procedure of the European Union. European Union Politics, 12(1), 41–64. http://doi.org/10.1177/1465116510388675
Reh, C. (2014). Is informal politics undemocratic? Trilogues, early agreements and the selection model of representation. Journal of European Public Policy, 21(6), 822–841. http://doi.org/10.1080/13501763.2014.910247
Reh, C., Héritier, A., Bressanelli, E., & Koop, C. (2011). The Informal Politics of Legislation: Explaining Secluded Decision Making in the European Union. Comparative Political Studies, 46(9), 1112–1142. http://doi.org/10.1177/0010414011426415
Risse, T. (2000). “Let’s Argue!”: Communicative Action in World Politics. International Organization, 54(1), 1–39.
Risse, T., & Kleine, M. (2010). Deliberation in negotiations. Journal of European Public Policy, 17(5), 708–726. http://doi.org/10.1080/13501761003748716
Roberts, A. (2004). and in Intergovernmental Organizations Transparency Partial Revolution : The. Public Administration, 64(4), 410–424.
Sauvé, P. (2014). A plurilateral agenda for services? Assessing the case of a Trade in Services Agreement (TiSA). In P. Sauvé & A. Shingal (Eds.), The Preferential Liberalization of Trade in Services: Comparative Regionalism (pp. 413–432). Cheltenham: Edward Elgar.
Schelling, T. C. (1960). The Strategy of Conflict. Cambridge: Harvard University Press.
Shackleton, M., & Raunio, T. (2003). Codecision since Amsterdam: a laboratory for institutional innovation and change. Journal of European Public Policy, 10(2), 171–188. http://doi.org/10.1080/1350176032000058982
Soubry, A. (2016). Answer to written question by Caroline Lucas, House of Commons 26010. London. Retrieved from http://www.parliament.uk/business/publications/written-questions-answers-statements/written-questions-answers/?page=1&max=20&questiontype=AllQuestions&house=commons%2clords&use-dates=True&answered-from=2016-02-04&answered-to=2016-02-04&keywords=TTIP
Stasavage, D. (2004). Open-Door or Closed-Door? Transparency in Domestic and International Bargaining. International Organization, 58(04), 667–703. http://doi.org/10.1017/S0020818304040214
Stasavage, D. (2006). Does Transparency Make a Difference? The Example of the European Council of Ministers. In C. Hood & D. Heald (Eds.), Transparency. The key to better governance? (pp. 165–179). Oxford: Oxford University Press. http://doi.org/10.5871/bacad/9780197263839.003.0010
Stop TTIP: European Initiative against TTIP and CETA. (2016). Retrieved March 1, 2016, from
21
https://stop-ttip.org
UNECE (2015). Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. Task Force on Access to Information, fourth meeting, Geneva, 8-10 December 2015. Overview of Case Law on Access to Environmental Information. Retrieved from http://www.unece.org/env/pp/tfai.html
Viilup, E. (2015). The Trade in Services Agreement (TISA): An end to negotiations in sight? Brussels.
von Daniels, J., & Orosz, M. (2016, February 1). Berlin: 35 square metres of TTIP transparency. EU Observer. Berlin. Retrieved from https://euobserver.com/beyond-brussels/132070
Weiler, J. H. H. (2000). The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement (No. 9/00). Harvard Jean Monnet Working Paper.
Woolcock, S. (2010). The Treaty of Lisbon and the European Union as an actor in international trade (No. 01/2010). Brussels.
Woolcock, S. (2015). Trade Policy. Policy-Making after the Treaty of Lisbon. In H. Wallace, M. A. Pollack, & A. R. Young (Eds.), Policy-Making in the European Union (7th ed., pp. 389–405). London: Oxford University Press.
Yu, P. K. (2011). Six Secret (and Now Open) Fears of ACTA (No. 11-12).
Zalan, E., & Teffer, P. (2015, October 15). TTIP protesters warn of Trojan Horse. EU Observer. Brussels. Retrieved from https://euobserver.com/economic/130705
Zimmermann, H. (2008). How the EU Negotiates Trade and Democracy : The Cases of China ’ s Accession to the WTO and the Doha Round. European Foreign Affairs Review, 13(2), 255–280. Retrieved from www.kluwerlawonline.com
22
Interviews
1. Interview Commission official (Brussels, 19-11-2013). Interview on informal technical meetings. [Interview Evelyn Coremans].
2. Interview national trade official (Brussels, 01-02-2014). Interview on informal technical meetings. [Interview Evelyn Coremans].
3. Interview national trade official (Brussels, 12-02-2014). Interview on informal technical meetings. [Interview Evelyn Coremans].
4. Interview national trade official (Brussels, 24-02-2014). Interview on informal technical meetings. [Interview Evelyn Coremans].
5. Interview Commission official (Brussels, 04-11-2014). Interview on informal technical meetings. [Interview Evelyn Coremans].
6. Interview independent respondent (Brussels, 31-08-2015). Interview on informal practices in EU trade policy. [Interview Evelyn Coremans & Bart Kerremans].
7. Interview former national trade official (03-09-2015). Interview on informal practices in EU trade policy. [Interview Evelyn Coremans & Bart Kerremans].
8. Interview former national trade official (03-09-2015). Interview on informal practices in EU trade policy. [Interview Evelyn Coremans & Bart Kerremans].
9. Interview former national trade official (06-10-2015). Interview on informal practices in EU trade policy. [Interview Evelyn Coremans].
10. Interview national trade official (06-10-2015). Interview on informal technical meetings. [Interview Evelyn Coremans].
11. Interview Commission official (Brussels, 27-10-2015). Interview on informal technical meetings. [Interview Evelyn Coremans].
12. Interview Commission official (Brussels, 28/01/2016). Interview on transparency in EU trade negotiations. [Interview Evelyn Coremans].
13. Interview Commission official (Brussels, 29/01/2016). Interview on transparency in EU trade negotiations. [Interview Evelyn Coremans].
14. Interview Commission official (Brussels, 29/01/2016). Interview on transparency in EU trade negotiations. [Interview Evelyn Coremans].
15. Interview Council official (Brussels, 09/02/2016). Interview on transparency in EU trade negotiations. [Interview Evelyn Coremans].
16. Interview European Parliament official (Brussels, 29/03/2016). Interview on transparency in EU trade negotiations. [Interview Evelyn Coremans].