Last week Viviane Reding MEP presented to the European Parliament’s International Trade Committee the draft report on the Trade in Services Agreement (TiSA). Among others, she stressed that states’ and public authorities’ right to regulate needs to be protected and ensured in the negotiations. She called on the exclusion of public services, namely water, social, health and education services, as well as audiovisuals and publishing.
Most of shadow rapporteurs welcomed the balanced approach of the draft report. From the exchange it has emerged that public services are a sensitive issue and that there is common consensus that they should be excluded and protected. Last spring Commissioner Malmström and US Ambassador Froman made a joint statement to reassure that public services are protected in both the Transatlantic Trade and Investment Parnership (TTIP) and TiSA.
At a first glance, one could be satisfied with the discussions and think that public services – or services of general interest, as we prefer to call them – will be protected in TiSA and other trade agreements. Notwithstanding the political declaration of our leaders, are public services fully protected in the ongoing negotiations?
As often, the devil is in the details. We at Social Platform consider that the approach taken so far in trade agreements is insufficient to fully protect services of general interest in a way that ensures legal certainty. The main flaws we have identified in the legal texts available are the following.
- Only services supplied in the exercise of governmental authority (in general, administration, police, and justice) are excluded from the scope of agreements. According to the definition given by the General Agreement on Trade in Services (GATS), that is likely to be followed in TTIP and TiSA, services that are partly provided commercially or in competition with private operators would definitely not be excluded. In most of EU countries, most of services of general (economic) interest are provided in those conditions and therefore would fall in the scope.
- Many legal concepts used in trade agreements do not correspond to similar concepts enshrined in primary and secondary EU legislation: they are either broader and vaguer than EU legal categories or more narrowed. This does not ensure legal certainty.
- The so-called “public utilities” clause deemed to provide a wide protection to public services lays down an exception only to the obligations on market access (that prohibit a number of quantitative and qualitative market access restrictions if no specific limitations exist) and not to national treatment (that requires that foreign services and service providers are not treated less favourable than national services and service providers). In addition, it refers only to monopolies and exclusive service providers and does not apply to quotas or economic needs test.
- Exclusion of social, health and education services is ensured only if those services are publicly funded.
- Positive listing and negative or hybrid listing only theoretically provide the same level of protection to services of general (economic) interest.
We will soon adopt a position paper highlighting our concerns and putting forward our proposals. We hope that the European institutions, starting from the European Commission, will engage in a constructive dialogue with us and with civil society in general. Often civil society is considered as “the problem” in the negotiations, just opposing trade agreements because anti-global, anti-EU and anti-American.We are not anti globalisation, against the EU or against the US. We consider that we express legitimate concerns in the general interest and make all our efforts to participate in the negotiations in a positive way. Therefore we expect to be listened to.
