This could be an interesting, quasi-constitutional, challenge for the EU. bq. The World Wide Fund (WWF) has taken the Council of Ministers to the European Court of Justice over allegations that its influential 133 Committee on external trade has wrongly withheld documents requested by the organisation (“Euractiv”:http://www.euractiv.com/cgi-bin/cgint.exe/1981116-499?204&OIDN=1507967&-tt=td) The 113 Committee takes its name from a clause in the basic treaty that created the EC (the 1957 Treaty of Rome). The WWF press release on the challenge is “here”:http://www.panda.org/news_facts/newsroom/news.cfm?uNewsId=13950&uLangId=1 Of course it’s amusing to see one of the EU’s much-cultivated anti-trade NGO’s take it to court. But there is a serious issue here. Governments won’t make trade policy in public because most of the mechanisms of trade policy (tariffs, quotas, licenses and even measures to protect standards) are distributive. That is, they tax some person or group and apply the proceeds—often minus a share for the government—to a subsidy for some other person or group. It’s not difficult to understand why governments don’t want to do this under the public gaze, even if they believe that the re-distribution is needed to serve some worthy ‘higher’ purpose such as income equity, industrial development, or their own re-election. The distributive impact of trade policies is an issue whether protection is being wound up or down. Liberalization means taking an advantage away from a person or group that may be politically well-connected (that’s how they won the advantage in the first place) and returning the benefits to a usually silent majority of consumers. So there’s nothing necessarily nocive about the secrecy of the 113 Committee. Although it’s the Council of Ministers—that is, member states—who are the defendants in this suit, the EU Commission will be the ones squirming most. The difficulty for the European Commission is that the power to make external trade policy is one of their most basic constitutional remits from member states. They don’t want to do it in public any more than their member states do. On the other hand, they are even more concerned than member states—who have sovereign, not delegated powers—to secure a ‘democratic legitimacy’ for their centrist role: going over the heads of member state governments to popular groups like WWF and other NGOs where it’s possible. They are likely to be torn in two directions by this challenge. No doubt, the Commission will consider that this is a good opportunity for the EC Court of Justice to ‘shut up’.
Peter Gallagher is a leading Australian consultant on trade and public policy.[bio].
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