Will regulatory cooperation in TTIP become a straight-jacket for EU law making?

Regulatory cooperation might sound like a relatively benign and straightforward part of trade agreements. It is actually at the very core of TTIP, a trade deal being negotiated between the US and the EU which would be the world’s largest. By aligning regulations, standards, or merely exchanging data, the EU and US are hoping to cut costs for businesses on either side of the Atlantic.

If regulatory cooperation were to eliminate redundancies or to lead to more informed decisions, no one would oppose it. But in a previous blog we laid out our worries, shared by many, including national governments and parliaments.

By codifying ‘better regulation’ procedures into a trade deal, the desire to cut costs risks becoming the global norm.

Voluntary cooperation?

The Commission published an updated proposal on regulatory cooperation today. Some of our and other public interest groups’, concerns with the first version have been taken into account[1].

There are two main improvements. These are that regulatory cooperation should be voluntary and that the right on either side of the Atlantic to regulate has been strengthened.

‘Better’ regulation creeping into trade deal

But, unfortunately, it is not all rosy. The chapter on ‘good regulatory practices’ mirrors the Commissions’ ‘Better Regulation’ agenda. This strategy to cut red tape is – luckily – not set in stone however. It could find itself watered down, or ditched altogether, in the future by the next Commission. But by codifying ‘better regulation’ procedures into a trade deal, the desire to cut costs risks becoming the global norm. That would be bad for EU law-making, as it would subordinate future EU legislation to the principles of TTIP.

The US bluntly refuses to share its proposals on regulatory cooperation with the public.

Another very problematic provision in the EU’s text is the possibility for “natural and legal persons” to propose “improvements to existing regulatory frameworks”. Only the big corporations will have the ‘evidence’ that measures are too burdensome and should be simplified.

A lawyer’s paradise

The chapter is also littered with vague, undefined concepts which – within a trade deal – could be misinterpreted in many ways. We counted more than 20 concepts in the latest EU text which were not self-explaining, such as “timely information”, “unnecessarily burdensome” and “pre-normative research”. It will be a lawyer’s paradise.

In stark contradiction to any good law-making practice the US bluntly refuses to share its proposals on regulatory cooperation with the public. Only a very limited number of US stakeholders, bound by outdated confidentiality rules, have access to it and are not allowed to comment on them. No surprise than that people remain concerned about what will be in the final deal.

Our in-depth analysis of the Commission’s (first) regulatory cooperation proposal sees the risk of a system emerging where delay and regulatory paralysis are prevalent. The big change in the Commission’s updated proposal is its voluntary character. But such a voluntary system already existed in the past. It was called the Transatlantic Economic Council (TEC). It did not deliver, industry says. Why would another voluntary approach to regulatory cooperation in TTIP be the supposed ‘game changer’ the Commission has promised? Either there is the political will to voluntarily cooperate, in which case you don’t need a TTIP chapter on it, or there is no political will, and then even TTIP will not make a difference. Maybe the whole regulatory cooperation thing should be thought over again?


[1] This new version has been shared with the US at the occasion of the 12th negotiation round that took place at the end of February.

This blog was written by Monique Goyens, Director General at the European Consumer Organisation (BEUC) and EU Co-Chair of the Transatlantic Consumer Dialogue (TACD). It first appeared on 21 March 2016 on the BEUC blog “The Consumer View on TTIP.”