Time and again, attempts have been made within the framework of trade and investment agreements to curtail government options as regards to regulations in the public interest. Concerning the EU trade policy review by the European Commission, it should be made clear that public services have to be excluded from trade agreements.
On 15 June 2020, numerous trade unions und civil society organisation representatives met for an online-meeting on securing the public interest in global trade in services negotiations. Legal Scholar Prof. Markus Krajewski and Oliver Prausmüller, Expert of the Chamber of Labour Vienna, among other, spoke at the meeting, which had been jointly organised by the European Federation of Public Service Unions (EPSU), AK EUROPA and ÖBG, the Austrian Trade Union Federation Europe office.
Commercial vs. public interest
The online event mainly focussed on government regulations and their possible restrictions by trade agreements. Following the failure of earlier attempts, 33 Member States have been working at WTO level since 2017 to prevent regulations in the public interest – in particular also with regard to public services –and to prioritize commercial interests. Similar attempts for a greater “pro-business stance” could be observed during the course of negotiations on the Trade in Services Agreement (TiSA) as well as in respect of current negotiations on bilateral and regional trade and investment agreements.
At WTO level, the issue shall be discussed at the Twelfth Ministerial Conference, which should have taken place from 8-11 June in Nur-Sultan, the capital of Kazakhstan, which, however, had to be postponed due to the Coronavirus crisis. Discussions on the Kazakhstan’s proposal are currently under way to reschedule the conference for June 2021. In May 2019, in total 59 WTO Members adopted a Joint Statement, welcoming the progress regarding the restrictions of Domestic Regulation and committing themselves to work on solving any still open issues before the Ministerial Conference. The fact that negotiations in this area have been highly non-transparent, makes a critical view and assessment of the plans by trade unions and civil society all the more important. Even though the TiSA negotiations have been placed on hold for years, this might change again following the US election in November 2020.
Public services as core elements of the democratic welfare state
As part of his presentation, Prof. Krajewski provided an overview of relevant questions and developments as well as a preview of a publication in progress, in which he addresses various types of restrictions and their potential impact on the regulation in the public Interest. In this context, he discusses possible solutions and safeguards, such as the inclusion of a clause on public interest in service agreements. The Chamber of Labour demands the complete and legally certain exemption of public services from trade and investment agreements. Public services, such as energy, water and healthcare, should – as core elements of a democratic welfare state - be accessible to all citizens and not be left to the arbitrariness of the market. As early as 2016, a joint Study by EPSU and AK EUROPA had explained what a relevant clause might look like.
Brexit and other agreements
The issue of domestic regulation also plays a part in bilateral trade agreements. According to Prof. Krajewski, one of the free trade agreements, which one should definitely keep an eye on, is the intended agreement between the EU and the United Kingdom. Tom Jenkins, expert of the European Trade Union Confederation (ETUC), remarked that the reason why the negotiations in this area were so exceptional was not how to bring two negotiation partners together as closely as possible, but the question, how far the EU and one of its former members would depart from each other. So far, ‘services’ had played a more subordinate role though. However, the negotiations on Brexit aside, one must not lose sight of the negotiations on corresponding negotiations with Australia, New Zealand, Chile and China.
Trade policy situation
The event organised by EPSU, AK and ÖGB comes at an extremely turbulent time as regards to trade policy. Temporary export controls regarding personal protective equipment, delivery bottlenecks for medication and a wide discussion concerning the resilience of global supply chains – the Coronavirus crisis means that the EU is confronted with a wide range of challenges. This was one of the reasons why on 16 June 2020, the European Commission started a comprehensive EU trade policy review, including a public consultation seeking input from the European Parliament, Member States, stakeholders and civil society. The Commission hopes to gain wide agreement for a mid-term realignment of its trade policy. According to Phil Hogan, Commissioner for Trade, the consultation shall help to “develop a bespoke EU trade policy approach for the post-coronavirus world”.
The post of EU Commissioner for Trade might soon become vacant, as Hogan, following the surprising resignation of the WTO- Director-General Roberto Azevêdo has entered the race as a possible successor. The now started EU trade policy review, might also be an opportunity with regard to trade services to at last guarantee the protection of public services and to insist on tackling urgent challenges, such as the climate crisis.