During the past years, the risks of free trade agreements for public services have not only triggered repeated political controversies, but also ongoing cooperations and research projects. Last week, Markus Krajewski, Professor at the Friedrich-Alexander University Erlangen-Nürnberg, presented the results of his new study “Model clauses for the exclusion of public services from trade and investment agreements” in the premises of EPSU. His presentation was followed by an interesting exchange with participants from a widely spread spectrum.
Lack of legal certainty
In his study, Krajewski comes to the conclusion that a model clause for the protection of public services should fulfil the following key criteria: a clear definition of public services, an adequate level of protection as well as sufficient legal obligation. In contrast to this are for example “symbolic proclamations”, which have little legal value or exemption provisions, which are too narrow or too sketchy. However, the current clauses of the EU Commission have too many loopholes and do in particular not keep up with the extended agenda of new generation agreements. This applies in particular in view of the limited level of protection of the so-called “public utilities” clause of the areas of application concerning investment protection (“ICS”/“ISDS“), which is getting out of hand.
When the tide comes
Krajewski also addressed the issue that the frequently used argument “Don't worry” “After all, everything went well with GATS”, was not acceptable. The participants of the workshop agreed -times change, policies change as does our understanding of public services. All of this had to be considered in respect of the ambitious liberalisation agenda of more recent agreement such as CETA, TTIP or TiSA.
Krajewski compared the lack of resilience of current exemption provisions with sand castles. One should always take the tides into account. There is another constellation today compared to the 1990ies, when the General Agreement on Trade in Services GATS was concluded within the framework of the WTO. In view of agreements of the newer generation one needed even more “weatherproof” exemption provisions, which could keep up with the increased risks for public services.
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