The high level of openness adopted in both the Brexit and TTIP negotiations show that the European Union (EU) takes transparency in its external relations seriously. Arguably, transparency constitutes a necessary pre-requisite for the proper deployment of the multi-level system of governance of the Union.
Despite the positive impact that transparency has on the legitimacy and accountability of such system of governance, confidentiality is to some extent still necessary. Indeed, the secrecy in the negotiations for the Japan-EU Free Trade Agreement (JEUFTA) demonstrates that a full-transparency approach to the international agreements of the EU may not be always practicable or even advisable. This creates the issue of ascertaining “how much” transparency we should be requiring from the EU for legitimate decision making to take place.
Key issues addressed and findings
Transparency - Generally speaking, the concept of transparency is a tricky one. It lacks clear boundaries and it is strictly interconnected to the evolution of society. Intuitively, we associate transparency to the Greek model of democracy, in which full disclosure of information allows collective decision making. Such an ideal is however outdated in modern society, where numbers and distances rule out the possibility that everyone may directly have a saying on the future of the community.
A general trend towards transparency - The trend towards enhanced transparency has a global and horizontal dimension. It is sufficient here to recall the UNCITRAL Rules on Transparency in Investor-State Arbitration. Such a phenomenon is, inter alia, connected to some changes in international law, which create an unresolved contradiction at the heart of the Modern State: A growing number of non-State entities performing quasi-constitutional functions(e.g. NGOs, International Organizations) find legitimacy in the trust they manage to gain from their constituencies. Transparency is key to this aim, allowing control of such non-State entities on both the levels of goals-setting (input level) and accountability of their activity (output level). Transparency thus allows a shift towards a new global system of governance in which non-State entities, individuals and States work together.
Transparency and the EU. The minefield of the FTAs - The EU is an early example of the previously mentioned changing dynamics of the global system of multi-level governance. As from Van Gend en Loos the Union has been building the legitimacy of its “new legal order” on two pillars: the Member States and individuals. Thus, transparency is increasingly more important for the Union to gain trust from its citizens. Arguably, after The Lisbon Treaty, transparency is embedded in the constitutional structure of the EU, both in its internal and external relations. Transparency is, for instance, key to fulfil the constitutional aims of the Union such as democracy and rule of law. Indeed, it allows the necessary level of individual involvement necessary to ensure the healthy functioning of a democratic system.
Transparency also permits to make the Institutions accountable for their work before both its citizens and Member States.
Transparency is however not an aim in itself and it must be balanced with other concurring values and interests (as acknowledged, for instance, in the EU Regulation on public access to the Institutions’ documents) Indeed, if some transparency is instrumental to building trust in the Union’s action, too much transparency may reach the opposite result (eg. the unjustified release of personal data).
The “new generation” EU FTAs creates a particularly strong “transparency dilemma”. Due to their increasingly broader scope such agreements are bound to have a very strong impact on individuals’ lives. Thus, despite the commitment in favour of more transparency being a global trend, the EU has gone far beyond the international standards in the field. For instance, by introducing the “good practice” of public consultations.
At the same time, EU FTAs require space and time for diplomacy. Arguably transparency comes at a particularly high price in the external relations of the EU. Indeed, the economic costs of enhanced transparency (e.g. length of the public consultations), need to be added to a number of political costs (e.g. transparency may be a stumbling block trading partners).
The EU position on transparency in the Brexit negotiations - If both parties to the Brexit negotiations committed to transparency in the Terms of Reference, the EU transparency regime greatly oversteps the position adopted by the UK Government.
Does such a different position derive from the particular value that transparency plays in the Union’s legal order? Arguably not. The political relevance of the Brexit negotiations suggests that the Union, like the UK is doing, may rightly claim a reasonable margin of secrecy. Too much transparency may even have a counterproductive effect for the Union, with the general public potentially perceiving any change in the Union’s position as a “betrayal”. Contrarily, the position of the EU seems rather dictated by practical and political considerations.
In search of a balancing point - Arguably, the balancing point to ascertain the right amount of transparency in the international relations of the EU should be the concept of “interest”. Thus, interest carriers should be given at least some access to negotiating documents. However, this leads to the further issue of deciding who can be considered an interest-carrier and the degree of interest necessary to this aim.
On July 14, 2017 the King’s College London Centre of European Law hosted a talk on transparency in the European Union’s Free Trade Agreements.
The PowerPoint from the talk is available on the LawTTIP website.
Giorgia Sangiuolo is a Ph.D. Researcher at King’s College London Centre of European Law. Her research focuses on the mechanisms of dispute resolution in the field of international investment law, with specific regard to their interaction with EU law. Giorgia is a qualified lawyer (Rome Bar Association) associated with Amministrativisti Europei Associati Law Firm and practices in the fields of Administrative and EU law, having gained a specific expertise in Public Procurement, Energy Law and Constitutional EU Law both in specialised law firms and at the Italian Council of State. After graduating cum laude from Federico II University of Naples, Giorgia completed with distinction both a Postgraduate course in International Energy Law at LUISS Guido Carli, University of Rome, and an LLM in EU Law at King’s College London, where she was awarded as best student.