Trade in Services Agreement (TISA) and Transparency

Transparency has been one of the key issues for TTIP - and is, of course, a prime concern of this blog. As people who follow me on Twitter may have noticed, I recently had quite a long, er, discussion with the TTIP team at the European...


Transparency has been one of the key issues for TTIP – and is, of course, a prime concern of this blog. As people who follow me on Twitter may have noticed, I recently had quite a long, er, discussion with the TTIP team at the European Commission that centred on transparency, or lack of it.

Their claims were the usual ones: that you can’t negotiate if you show your hand beforehand; to which I say: OK, publish all tabled documents, since they are no longer secret, and therefore don’t tell the other side anything new. The response to this is that the EU’s team must be allowed “room” to negotiate by keeping even tabled documents secret, but that makes no sense; moreover, at WIPO, practically everything is out in the open, and negotiators seem to be able to do their job without any problems. Finally, the comment was that TTIP is being conducted with “unprecedented” transparency; that may be true, but only because the European Commission is starting from such an abysmally low base that practically anything would be an improvement.

Actually, I do think that the European Commission is keenly aware that lack of transparency is undermining its case hugely, and wants to do something about it. After all, as the politicians love to remind us, if you have nothing to hide, you have nothing to fear, so the refusal to release key documents only breeds suspicions. Indeed, the lack of any real transparency has allowed all kinds of rumours to flourish, some of which are doubtless untrue. But if the European Commission won’t let us see the documents, their continual cries of “not true! not true!” ring very hollow. So it is very much in the European Commission’s own interest to open up the negotiations. To be fair, the main reason that is not happening seems to be the US team’s insulting refusal to allow even MEPs to see documents unless they are supervised like naughty children. The arrogant and inflexible behaviour of the US is probably one of the most powerful propaganda weapons that opponents of TTIP possess.

I think we can also see the European Commission realising that it needs to be more open in the context of the parallel Trade in Services Agreement (TISA), whose negotiations have been running for two and and half years. For most of that time, the Commission has barely mentioned it, clearly hoping it would fly under the radar. It certainly did for me – I only discovered TISA recently a couple of months ago. When I mentioned TISA on this blog, back in June, there were literally just a handful documents and Web pages available from the EU side (and precious little elsewhere.) But suddenly, an entire section of the European Commission’s Web site has sprung up that is devoted to it.

There are links to the few documents that existed until recently, including the original memo on the idea, the public consultation that was held last year (but which nobody knew about), and the Sustainbility Impact Assessment. There’s also a Question and Answer section, which is very close to that for TTIP, both in tone and some details. Here’s a sample:

What does TiSA cover?

TiSA is facilitating trade in services in the countries taking part in the talks, so providers from one country can offer their services in another. An example would be an Australian lawyer advising a client in Canada.

Each country’s negotiators are discussing the terms and conditions which suppliers from other countries will have to meet in order to provide services in their market.

Negotiators are discussing all areas which the General Agreement on Trade in Service (GATS) already covers.

These include all service sectors except:

air traffic rights – the rules on where and how airlines can carry passengers and freight between countries services only governments provide, such as justice, policing or defence.

That makes clear that all kinds of computer and online services are included. Significantly, though:

TiSA will not include measures designed to protect investors, such as an Investor to State Dispute Settlement (ISDS) mechanism.

Here’s one very important area:

Will TiSA undermine data protection laws?

No, it will not.

TiSA will contain the same safeguards for protecting privacy that currently exist in the General Agreement on Trade in Services (GATS), an international agreement signed by all members of the World Trade Organisation (WTO).

Nothing in TiSA would stop a country from applying its confidentiality or data protection laws.


As for the transfer of financial data, all existing EU and national laws on the protection of privacy will continue to apply. TiSA will not change them in any way.

In the TiSA talks we are discussing possible rules for the transfer of data. These are inspired by similar provisions in our existing free trade agreements, such as the one with South Korea.

Despite those comforting words, we know from TTIP that data protection is likely to be a hugely contentious area, since the US Internet companies have very different ideas of what rights their users should have when it comes to privacy.

The following question is rather amusing, since it confirms that European Commission is still licking it wounds after its earlier defeat on ACTA:

Is TiSA ACTA through the back door?

No. ACTA – the Anti-Counterfeiting Trade Agreement – is dead. The EU has no intention of reviving it.

ACTA was intended to end the trade in fake (counterfeit) goods. The European Commission fully respects the position of the European Parliament, which voted against ACTA.

So we have no plans to use TiSA to draw up new rules to end trade in counterfeit goods. There will be no ‘ACTA through the backdoor’ - neither in TiSA, nor anywhere else.

However, the Commission said exactly the same in regarding TTIP, and we know now that ACTA 2.0 is definitely on the TTIP menu, so the assurance above is hardly to be trusted.

Finally, we have the follow gem:

Are TiSA negotiations secret?

No. Trade negotiations are not held in public, but they are not secret.

The Commission regularly gives updates on progress in the talks, and copies of all negotiating documents, to:

the Council of the European Union, which brings together the governments of the EU’s 28 countries the European Parliament.

We also meet frequently with representatives of civil society.

I’m sure the last of those claims will come as a surprise to most of civil society. And notice that, as usual, the public is nowhere mentioned or considered. So against that dismal background, the appearance of this new TISA page on the Commission’s Web site, with its recognition of transparency’s key role in these negotiations, is certainly welcome:

Transparency is important to the European Commission. In the talks on a Trade in Services Agreement – as in the Doha Development Agenda negotiations – we want to be as open as we can and to make our positions as transparent as possible without jeopardising our ability to negotiate.

The TiSA negotiations are based on texts tabled by the participating countries. In the EU’s case, texts submitted by the EU are first agreed with the governments of the EU’s Member States.

As part of our ongoing efforts to make the EU’s position in the TiSA talks as transparent as possible, we have made public those EU contributions to the negotiations the publication of which at this stage does not undermine the EU’s negotiating position:

A concept paper Two proposals for rules An initial offer

These papers only set out the EU’s position. Other countries taking part in the TiSA talks have also tabled papers. Whether they choose to make their papers public is a matter for their governments.

As you can see, the European Commission is not only making a concept paper available, but even its initial offer, although this was made in November last year, and so is not particularly fresh. That’s certainly an improvement over what is happening with TTIP, but the idea that it is not possible to publish more or less everything is belied by the example of Switzerland. Here is what that country’s TISA page says:

From the start of the negotiation in February 2012 Switzerland actively supports this initiative. Switzerland submitted in June 2012 its first written position paper (see pdf document at the end) to the other negotiating parties, and since then, especially during the phase of setting the foundation of the agreement, submitted regularly further written contributions.

This negotiation raises a strong interest internally in the broader public and in Parliament.

The page includes links to that first position paper, plus ten more of them that were issued in the following two years, two parliamentary interventions and Switzerland’s initial offer. It’s not perfect by any means, but it’s an impressive demonstration of what can be done, despite what the European Commission would have us believe.

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