EEB A/S FERNANDEZ IN BRUSSELS: IMPACT OF LISBON TREATY AND

UNCLAS SECTION 01 OF 04 BRUSSELS 001719 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ECON ETRD EINV PREL PGOV EUN SUBJECT: EEB A/S FERNANDEZ IN BRUSSELS: IMPACT OF LISBON TREATY AND OPPORTUNITIES FOR ENGAGEMENT WITH EU BRUSSELS 00001719 001.2 OF 004 ¶1. (SBU) Summary: During discussions with EU officials and stakeholders in Brussels on December 9-10, EEB Assistant Secretary Fernandez explored the current state of, and prospects for, the transatlantic economic relationship, the future of the Transatlantic Economic Council (TEC),the impact of the Lisbon Treaty and changes in EU leadership, and the enlarged role of the European Parliament. The European Commission's new authority over investment policy presents both opportunities and challenges for the United States in working with the EU on investment protection agreements in Europe and globally. The increased authority to the European Parliament requires the USG to work more closely with the EP, and suggests that we look at ways to increase EP coordination with the Congress. The incoming Spanish Presidency, although it faces challenges with the transition to post-Lisbon mechanisms, has transatlantic cooperation as a top priority and is ready to work with the USG on the TEC, concluding a new aviation agreement, and implementing decisions reached at Copenhagen. Counterterrorism cooperation will be a high priority for the Spanish, but we face challenges in moving ahead with an agreement on exchange of financial data; intensified U.S.-EU coordination is needed to ensure that European Court of Justice concerns are addressed in new United Nations sanctions resolutions. All interlocutors welcomed Fernandez' early visit and stressed the importance of intensifying the U.S.-EU dialogue as a means of increasing domestic and global economic prosperity. End summary. ¶2. (U) In his second week after taking up duties, State Department's Assistant Secretary for Economic, Energy and Business Affairs Jose ¶W. Fernandez, accompanied by Executive Assistant Maryruth Coleman, visited Brussels December 9-10 for discussions with officials from a range of EU institutions as well as stakeholders and observers. In a series of office calls and group engagements Fernandez was able to exchange views with the European Commission (EC) Director General for Trade, David O'Sullivan, Director for External Relations, Alan Seatter, and Director for Air Transport, Daniel Calleja-Crespo, as well as Commission Deputy Secretary General Alexander Italianer and the Chiefs of Staff to the Commissioners for Enterprise and External Relations; with several Members of European Parliament and staff, including Peter Skinner of the Economic and Monetary Affairs Committee; with the AmCham EU's transatlantic policy committee; and with several non-government and think tank representatives, including former Commission Ambassador Hugo Paemen. He also held a roundtable session with an interagency group of staff from USEU and Embassy Brussels, and met with USEU Ambassador Kennard and Embassy Brussels Ambassador Gutman. In all meetings A/S Fernandez noted that the United States' economic partnership with Europe is several times larger in size than any other market, explained that he wanted to understand the changes to the relationship that stem from the Lisbon Treaty, and solicited suggestions from all interlocutors of concrete opportunities for engagement that would improve transatlantic relations. -------------- Lisbon Treaty impact -------------- ¶3. (SBU) One unanimous conclusion about the Lisbon Treaty, which entered into force on December 1, 2009 (reftel),is that the European Parliament's role will increase significantly (see further non of a structure for a more coherent EU foreign policy, it now appears that ne of Lisbon's greatest impact will be on ecoQomic policy making, specifically the increase oQ EP powers. -------------- European Parliament -------------- ¶5. (SBU) The message to A/S Fernandez on the EP was clear and consistent: its role has increased in recent years, and the new powers it has under Lisbon will make it a force that cannot be ignored. One U.S. lawyer active in Brussels for thirty years said that not long ago he didn't even know where the EP was situated, but BRUSSELS 00001719 002.2 OF 004 today he spends more time there than at any other EU institution. The observers noted that the EP's relationship with the Commission is already more like that of Congress's with the Administration, in that the EU does not have a parliamentary system, making the EP a more independent institution. Lisbon gives the EP the right to vote on (and therefore veto) additional legislation that it previously was only consulted on, thus increasing it legislative authority with the European Council (made up of representatives of the 27 Member State governments). The EP's new authorities include a say over the full EU budget (now including agricultural payments),agricultural policy, investment policy, trade agreements, justice and legal matters, and implementing rules for commercial regulations. Many of the modalities for the new procedures have yet to be determined. Among the consequences of this shift in power discussed during Fernandez' visit: - The EP's elected representatives have different priorities from the Member State governments that make up the European Council: human rights and data protection, for instance, are a much higher priority and therefore will likely become more prominent in future EU negotiations. - The EP takes an up-or-down vote on legislation, whereas the Council nearly always works on the basis of consensus (even if Lisbon permits the Council to vote on the basis of a qualified majority): EP debates will introduce greater transparency into EU deliberations; it will be important for stakeholders like the USG to provide information to both individual MEPs and parties (since party discipline is not universal); since MEPs have very limited staff, personal engagement is important. - Early and consistent consultation with the EP will be important to the success of Commission-proposed initiatives (and for the USG and other stakeholders to influence decisions). - For trade agreements, the Commission may need to consider requesting the sort of "fast track" authority used in the United States. - The EP will have to become more professional to take on its greater role. - The USG needs to engage more directly and more actively with the EP (DHS Secretary Napolitano's appearance before the EP's Civil Liberties, Justice and Home Affairs Committee in November was cited as a positive precedent). - The USG and EC should consider a more formal role for the EP (and the Congress) in the TEC. - Coordination between the EP and the U.S. Congress needs to be broader and deeper, including regular consultations between relevant committees (with a view to bringing policy approaches and laws closer together),staff exchanges, and interaction with the Senate as well as the House; the existing Transatlantic Legislators' Dialogue between the EP and the House is a good basis but is not sufficient. -------------- Investment -------------- ¶6. (SBU) The Lisbon Treaty gives the Commission authority to negotiate investment protection agreements, a competence previously reserved to the individual Member States. David O'Sullivan, Director General for Trade, told Fernandez that the Commission would take time to put procedures in place before commencing any negotiations. He said that to avoid any legal uncertainty during the transition period, the Commission will grandfather Member State bilateral investment treaties that were in place prior to the entry into force of Lisbon. Given that it will take some time before the Commission is prepared to exercise its new role, O'Sullivan also said it considering agreeing that Member States continue to negotiate BITs for an unspecified period of time. ¶7. (SBU) The Commission has not determined which will be the first EU BIT that it negotiates, but O'Sullivan thought India may make sense given that free trade agreement negotiations are already underway. An agreement with ASEAN will be a likely priority. O'Sullivan estimated that it will take "20-30 years" for the EU to replace existing Member State BITs. Since the EU will only negotiate BITs with its most important investment partners, O'Sullivan predicted that some existing BITs between Member States and certain non-priority countries would remain valid indefinitely. --- TEC --- ¶8. (SBU) Fernandez heard broad support for the Transatlantic Economic Council from all corners. There was strong agreement that the U.S. and EU need a mechanism like the TEC for strategic coordination on economic priorities, and that it needed to operate at a strategic level; no one wants to see an issue like the long-standing poultry dispute come to dominate the TEC again. As noted above, several officials (most prominently, but not exclusively, MEPs) believed the EP should be more engaged in the TEC. BRUSSELS 00001719 003.2 OF 004 ¶9. (SBU) In the second Barroso Commission that will take office in February, the EU lead for the TEC will be the designated Trade Commissioner, Karel De Gucht, shifting the staff lead from DG Enterprise to DG Trade. This was generally seen as an improvement, with DG Trade expected to do a better job balancing competing EU interests. O'Sullivan indicated that DG Trade was only starting the process of absorbing this new responsibility. His goal is to keep the TEC focused on long-term objectives and strategic goals. He and De Gucht (the current Development Commissioner) had already discussed the TEC; De Gucht is looking forward to taking on the TEC and to working together with the U.S. co-chair, Deputy NSA Mike Froman. ¶10. (SBU) Several officials and observers saw the shift in EU lead on the TEC as a useful opportunity to re-examine existing procedures. Some in the business community and elsewhere questioned USG commitment to the TEC process; some EC officials claimed they did not see a consistent high-level USG focus on TEC work program. All parties noted the Spanish desire to host a successful Spring TEC meeting as a prelude to a U.S.-EU Summit, and urged the USG to continue working on agreed projects with EU counterparts; EC officials offered assurances that the institutional and leadership transitions underway would not slow EU work on TEC priorities. -------------- Counterterrorism: TFTP and UNSCRs -------------- ¶11. (SBU) To highlight the difficulties the USG and the EC face in adjusting to Lisbon Treaty institutional arrangements, several interlocutors raised the bilateral agreement on data sharing under the U.S. Terrorist Finance Tracking Program (TFTP). An interim agreement that will govern data sharing from February through October 2010 was signed on November 30, 2009, i.e., prior to Lisbon rules entering into effect. MEPs and others complained that the EP was largely kept in the dark on the agreement, despite the well-known concerns of many MEPs about data privacy and suspicions over the program. Because the agreement was not ratified by the 27 national parliaments before December 1, post-Lisbon rules now apply: the Commission and Council will forward the provisional interim agreement in December to the EP for its consideration in providing or withholding its consent in the coming year. Commission officials thought it likely that a majority of MEPs would support the time-limited interim agreement, but that it would take a concerted and coordinated effort by both the EU and USG to achieve success. Given that January will be dominated by hearings on the new Commission, it seemed unlikely an EP vote on the TFTP agreement would take place before February 2010. The relevant committee (Civil Liberties, Justice and Home Affairs) will likely take up discussions in early January. ¶12. (SBU) The situation for a long-term TFTP agreement is much different. The next College of Commissioners will need to propose a negotiating mandate for formal Council endorsement, probably with informal consultation of the EP. Many MEPs are likely to seek to impose onerous data privacy provisions on Commission negotiators. EU officials and MEPs note that USG efforts to win approval of the interim agreement should anticipate a heated debate over the new negotiating mandate. No official work on the new mandate can begin until after the new Commission takes office, expected in February. ¶13. (SBU) Another counterterrorism issue raised was the need for future UN Security Council Resolutions sanctioning individuals (particularly those associated with NGOs) to take account of the due process concerns that have led the European Court of Justice (ECJ) to strike down many EU decisions that implement UNSCRs. While it was noted that an element of the issue was the ECJ's effort to assert its own institutional prerogatives, in fact there are real substantive concerns that U.S. and EU experts need to pinpoin and ensure are taken into account in future UNSCRs, such as the UNSCR 1267 renewal resolution anticipated this month from New York. -------------- Other opportunities and concerns -------------- ¶14. (SBU) Other areas highlighted to A/S Fernandez as both opportunities for increased bilateral engagement and potential concerns that should be jointly addressed included: - Digital Economy: both EC and EP are focused on new framework for information, communication and protection of consumer rights and intellectual property; early and consistent USG engagement is needed with both institutions to shape outcomes. - Financial services: the EC is moving ahead with many regulations that have far-reaching consequences; USG engagement is important to ensure these regulations are compatible with our own; the existing Financial Markets Regulatory Dialogue is working well, but needs to be high-level USG focus, and needs to include EP and Member States. - Third countries: the U.S. and EU share common objectives in many third countries; bringing competition rules to China is just one clear example; this could be a focus of the TEC. BRUSSELS 00001719 004.2 OF 004 - Development: the decision at the November Summit to launch a new U.S.-EU development dialogue was seen as an excellent opportunity to work together to increase global prosperity and to work on food security. - Aviation: current negotiations on second stage air services agreement offer huge potential (the Commission estimates the impact to the U.S. economy of an agreement that meets their proposals - which includes loosening U.S. restrictions on airline investment - would exceed the expected impact of the Doha Round); - Doha: several EU officials, and several business representatives, questioned continued U.S. commitment to the Doha Development Agenda; there was general agreement that this Round, like any international undertaking, cannot succeed without the United States and EU working together; several EC officials and stakeholders complained that the current USG stance on Doha is not well understood. ¶15. (SBU) Comment: The dual EU transitions now underway - the Lisbon institutional changes and impending seating of a new European Commission - offer both risks and opportunities. There will be numerous difficulties confronting the Spanish Presidency as the various EU institutions adjust to Lisbon rules and engage in the inevitable jockeying for position. This, plus the transition to new Commissioners, has the potential to slow bilateral cooperation with the EU. While not ignoring the risk, A/S Fernandez' interlocutors in Brussels all stressed the opportunities inherent in these transitions. We have the potential for some fresh thinking on the EU side of the TEC, to strike up a broader partnership with the increasingly powerful EP, and to take advantage of emerging power centers with the EU (the new centralized foreign policy apparatus, powerful committee chairs in the EP) to influence EU funding and focus for third country priorities. USEU looks forwarding to working with A/S Fernandez and others in Washington on strategies to exploit these opportunities and achieve real progress with our EU partners on issues that will improve U.S. and global prosperity. KENNARD