Lack Of Transparency In EU-India FTA Talks Spurs Requests For Halt

European and Indian business not only have privileged access to information on the planned EU-India free trade agreement, they even set the agenda for this negotiation from the start. That is the conclusion of a study by the Corporate Europe Observatory (CEO) and India FDI Watch published this week in Brussels and Delhi. Both organisations intend to appeal directly to the European Commission and the Indian government to stop negotiations as long as there is no access to negotiating positions and documents for all affected parties.

The EU-India FTA currently is expected to be finalised by the end of this or early next year. An EU-India summit originally planned for October and dedicated in part to the signing of the FTA has been postponed to December 2010 over issues of the scope and level of future IP protection, but also questions about the extent of tax reductions and easier access for the Indian workforce to the EU. A chief negotiator meeting, according to CEO information, will take place on 23 September, and a full-fledged negotiating round is planned during the first week of October.

CEO and India FDI Watch in their study, released 1 September and available here, heavily criticise the FTA negotiations as tailored to corporate interests and kept behind closed doors without access for non-governmental organisations, trade unions or even members of the respective parliaments. No negotiating text or position has been made available to the Indian public, the Parliament or state governments, the study reports. With regard to the situation in Europe, study co-author Pia Eberhardt writes that even information that has been clearly shared with corporate lobbyists has been withheld from the public and public interest groups.

One major aim of the study was to reveal what it describes as the negotiators’ “incestuous relationship with vested interested groups.” Under access to information requests to the European Commission, Eberhardt received a variety of internal protocols about meetings between negotiators and lobbyists. Exchanges between industry lobbyists and negotiators from the European Commission’s Trade Directorate General started even before the official negotiations, the study shows.

A DG Trade email about a meeting with Business Europe in May 2007, for example, reveals advance planning to reinforce each other’s positions during the negotiations. “Business Europe were also interested to know what kind of business input we would find useful, e.g., more noise from their side to push for launch of negotiations, more substantial input.” The answers the Commission gave on this strategic planning have been deleted from the document obtained, as have many other parts of communication reviewed by CEO and India FDA Watch, said Eberhardt.

Commission Rejects Charge of Business Bias

The European Commission rejected a bias towards business with regard to access. Answering questions from Intellectual Property Watch, spokesman John Clancy said it was “not true that business was granted privileged access to the European Commission which would enable them to determine negotiating positions (..). In fact, when drafting its strategy for an FTA with India, the European Commission consulted various stakeholders and institutions, amongst which are NGOs, trade unions, wider civil society, member states and the European Parliament.”

Moreover, the regular Civil Society Dialogue undertaken by DG Trade also allowed the exchange of views about the India FTA, according to the spokesman.

But Eberhardt warns not to underestimate the difference in quality of these exchanges. The Civil Society Dialogue for example was a general forum that could not be compared to EU-India FTA special meetings. With regard to special meetings Eberhardt lists only one for the European Trade Union Confederation (ETUC) for example, two for Médecins sans Frontières (MSF, Doctors without Borders) and another one with a group of NGOs including OXFAM, Women in Development Europe (WIDE), and others.

During the same time, according to her list of meeting protocols, negotiators met with representatives of industry once every month. Input from the 2007 consultation was only partly available after access to information requests by Eberhardt and the 2007 questionnaire itself is buried somewhere deep down in the Commission’s website and difficult to locate.

“Trade Invaders” author Dharmendra Kumar from India FDI Watch wrote about consultations in India, and said the “information about the ´open´consultations on the FTA and about the positions that have been put forward by the stakeholders has not been made available. Respective access-to-information requests have been refused.” In India, even parliamentarians were denied access to information, as the agreement is negotiated by the Ministry of Commerce together with the Prime Minister’s office, with not even consultations with other ministries.

“Unfortunately, the world’s two largest so-called democracies are negotiating behind closed doors,” Kumar wrote to Intellectual Property Watch. Yet, whatever is leaking and coming out is raising alarm, and more and more sectors of Indian society like street traders afraid of losing to giant retailers like Carrefour and Metro are taking to the streets. While Europe prepares for expected job losses with its Globalization Adjustment Fund, in India possible abolition of protective tariffs (50.2 percent compared to 5.4 percent in the EU) could trigger major tax losses alongside surges of cheap imports from the EU.

Industry Position on IP Protection Still in Draft Text

The strongest argument the study authors make to show the bias in the FTA negotiations is the mere comparison of the leaked draft FTA text with the declared positions of industry associations like Business Europe or sector specific industry associations on the one hand and the positions of NGOs on the other. Industry positions have been taken up in most cases.

For example, data exclusivity provisions that protect test data of authorised drugs and chemicals for a minimum of 10 years have been on the agenda of the pharmaceutical and agrochemical industry and its associations like the European Federation of Pharmaceutical Industries and Associations (EFPIA) from the outset, said Eberhardt. Now, the introduction of data exclusivity is the official EU position regardless of a request by the European Parliament to “restrict the Commission’s mandate so as to prevent it from pharmaceutical-related TRIPS-plus provisions affecting public health and access to medicines, such as data exclusivity, patent extensions … within … future bilateral and regional agreements with developing countries.” TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

Despite the EU Parliament’s warning and similar calls from the German Parliament, and NGOs like Oxfam or MSF, the respective sections of the negotiation text has stayed unchanged in the April version. The IPR text is still under negotiation, the DG Trade spokesperson relayed to Intellectual Property Watch, and would change further. It is clear that it would not include any elements which would prevent India from using compulsory licensing for manufacture and export of life-saving medicines. A reference to the World Trade Organization Doha Declaration had therefore been added to the text.

With regard to the data protection, the negotiations with India are still ongoing and the Commission already indicated it would be flexible with respect to the manufacturing and export of generic medicines.

Still the April draft (the latest available, linked here) chapter on IP protection contains firm data exclusivity rules, a possible compensation for delays in market authorisation through extended patent life times. Even if non-industry sources including members of parliaments were heard, their proposals are much less translated into policy. CEO and FDI India Watch now call for a halt on the negotiations and for the publication of all draft negotiating documents to allow for more balance.