Trade negotiations are not what they used to be. The advent of ‘twenty-first century’ or ‘comprehensive’ trade agreements, whose scope reaches far beyond the traditional topics of tariff reductions and market access, have opened up discussions in a number of areas that used to be the exclusive realm of domestic policy. One area in which trade agreements have expanded is in addressing so-called ‘beyond the border’ issues such as regulatory trade barriers. In the Transatlantic Trade and Investment Partnership (TTIP) talks, the trade effects of domestic regulation have been emphasized as an area of great potential economic growth, with large figures being thrown around—some citing a 2.5 to 3 percent increase in GDP from the total elimination of regulatory trade barriers. But this early enthusiasm for resolving these long-standing barriers to trade masks a fundamental problem that is emerging: The United States and the European Union are at odds over the nature of regulatory trade barriers and how to address them.
For the United States, the focus seems to be on applying its domestic regulatory reform efforts on a global basis. On his latest trip to Europe, U.S. Trade Representative Michael Froman extolled the virtues of the U.S. approach to regulating, and urged the EU to take into account the principles of “transparency,” “participation,” and “accountability.” He noted that the U.S. process promotes these principles by providing: “advance notice of specific regulatory measures” (transparency); “meaningful opportunities for input from a broad range of stakeholders” (participation); and “responses to that input” (accountability).
His emphasis on these features reflects U.S. criticism of the EU regulatory process, in particular the EU’s system of issuing general papers for comment prior to proposing actual rules, without allowing comments on the text of the regulation itself. The clear implication of Froman’s remarks, made in Brussels before an audience of trade officials, is that, from the U.S. perspective, the EU should reform its regulatory process to take these principles into account.
The EU, by contrast, does not see domestic regulatory reform as the central issue in the elimination of transatlantic regulatory trade barriers. Furthermore, the EU does not view national discrepancies in the rulemaking process as a problem for cooperation more generally, and has also argued that the EU system is, in fact, transparent. They, too, get public and private input, but at an earlier stage, and allow for the participation of a wide range of stakeholders during the rulemaking process.
Not surprisingly, the EU did not seem receptive to the call for change. European Trade Commissioner Karel De Gucht put it as follows: “Neither side will be successful if it seeks to impose its system on the other.” In a speech crafted in response to Froman’s comments, De Gucht made clear that the EU focus is on addressing the outcome of regulation, by trying to reconcile regulatory differences that exist across various markets. This approach includes finding “ways to cooperate on future regulations to avoid unnecessary trade barriers,” and “to make existing regulations more compatible.” For example, automobile regulators in the U.S. and the EU each impose their own safety rules. Rather than forcing car companies to establish separate production processes for their vehicles in order to meet the diverse requirements of each market, governments could simply recognize that the rules are functionally equivalent, and a car that satisfies one market's rules should be deemed acceptable in others as well. Thus, the EU has suggested focusing on key sectors of transatlantic trade, such as autos, pharmaceuticals, and chemicals, among others, to examine where regulatory divergences are especially costly and prevent the free exchange of goods that have already gone through extensive testing and certification processes to evaluate their safety.
Based on this recent expression of views from high-level officials, it seems that the United States and European Union characterize the problem of regulatory trade barriers very differently. The U.S. sees regulatory barriers as having to do with how regulations are created; the EU, on the other hand, accepts differences in process at the outset, and is more concerned with addressing technical discrepancies in regulatory outcomes.
With these different approaches to regulatory trade barriers, U.S. and EU negotiators do not appear to be on the same page. Does this mean that the whole enterprise is doomed to failure? If so, that would be a disaster for TTIP, as many have been pointing to the elimination of regulatory trade barriers as the core of the negotiations.
To avoid such a spectacular failure, we need to think about a realistic way forward. Both issues are worth discussing at the international level. However, they have different implications in terms of their impact and sensitivities. The EU focus on tackling existing and future regulatory divergences, as opposed to domestic regulatory reform, is a useful starting point for addressing this issue. It can lead to concrete economic gains, and, if done right, should not interfere with domestic policy objectives.