October 3, 2013

Global governance: under cover of simplification


Richard North03/10/2013   

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With an amount of fanfare, ignored by most media, with the exception of the ever-loyal BBC, the Financial Times and Reuters, the European Commission announced yesterday that it was set to take further "ambitious" measures to cut "red-tape", and reduce the amount regulation it produces.

Sold as evidence of a more "pragmatic" EU, this is a programme called "Refit – fit for growth". Ostensibly, yesterday's announcement of "next steps" follows on from a statement made as part of Barroso's "state of the union" address last month, when he declared that "Europe" should be "big on the big things and smaller on small things".

Certainly, the few legacy media reports on this are taking the initiative at face value. Chris Morris, for BBC News in Brussels, even tells us that this is "the European Commission saying 'we hear you' - we hear the clamour for less regulation and interference".

A closer examination of the agenda, however, reveals that there is a darker, more sinister side to the initiative. In short, the "simplification" process is being used as a cover for the ongoing process of legislative harmonisation with global bodies such as the WTO, often through the aegis of UNECE.

It would be wrong here to say that this process is secret, especially in conspiratorial terms, as the evidence is published throughout the Commission's "europa.eu" website, and on the sites of corresponding global bodies. It's just that the Commission isn't going out of its way to advertise what it is doing. Effectively, we have another of those conspiracies in plain sight.

The devil, as always, is in the detail, with the Commission identifying in its press release and accompanying memo some 660 programmes aimed at "simplification, codification or recasting", with more than 5,590 legal acts having been repealed since 2005.

One has to understand the jargon here. The process of "recasting", for instance, involves repeal of original legislation, often with removal of their amending directives and regulations. But it is then re-enacted – sometime with parallel legislation covering other matters in a single sector. This ends up with exactly the same amount of regulation, but with a single, consolidated document, replacing as many as a dozen or more separate instruments.

Looking at the sector headings in the documentation, and then the COM(2013) 685 final, which sets out the detail of "REFIT", one sees an extraordinary correlation between the areas set aside for "simplification" and global standards-setting initiatives.

One example is the Unitary Patent Regulation, implemented by Regulation (EU) No 1257/2012, hailed by the Commission as one of its "major policy reforms".  This has been developed in conjunction with UNECE and relies heavily on the framework of treaties administered by the Geneva-based World Intellectual Property Organisation (WIPO), and on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The interesting thing here is that the EU itself has a dedicated website related to global harmonisation of substantive patent law. Furthermore, the European Union has a permanent observer status in WIPO and is a member of the five WIPO-managed Intellectual Property Treaties.

It should not be said, though, that all the current Commission activity has a global dimension.  In fact, there are two separate strands of activity going on here. One is the visible programme of consolidation, a necessary housekeeping process, tidying up a cumbersome and over-weighty legislative acquis. The other, concealed by the former, is the process of global harmonisation.  When legislation is being "recast", it makes obvious sense to bring it into line with global standards.

In COM(2013) 685 final, we thus see the claim that new regulations regarding light-motor vehicles has led to the repeal of fifteen Directives. This is almost entirely a result of the programme of harmonising EU vehicle regulations with the UN, via the UNECE World Forum for Harmonisation of Vehicle Regulations. Thus, two simultaneous objectives have been achieved - one openly declared, the other not. The headline number of laws has been reduced, for which credit is claimed, and the laws have been brought into line with UN regulations, about which nothing is said.

UNECE itself is an integral part of the legislative "simplification" and harmonisation process. It is running a Working Party on Regulatory Cooperation and Standardisation Policies (WP.6). It makes recommendations that "promote regulatory policies to protect the health and safety of consumers and workers, and preserve our natural environment, without creating unnecessary barriers to trade and investment".

These recommendations, framed as "soft law", are for the time being non-binding, but their fingerprints are all over the European Commission's proposals for a Regulation on Consumer Product Safety and a Regulation on Market Surveillance.

Even issues such as public procurement are increasingly influenced by global standards. Thus, while the Commission is parading its efforts to simplify the cumbersome EU regulations in this sector, in the "REFIT" initiatives, we also begin to see the effects of an increasingly pro-active UNCITRAL (United Nations Commission on International Trade Law). It is working alongside the World Bank and the European Bank for Reconstruction and Development (EBRD), to produce a global standard.

Here, the EU is playing an active role in drafting UN Conventions. Its claim is that it is aiming to make it easier to conclude international business, and has been closely involved with developing an action plan taking in the UN Convention on Contracts for the International Sale of Goods (CISG).

So deeply buried is all this, though, that it is scarcely recognised, even by some of the main players. It is not even clear whether EU Commissioners entirely understand what is going on, witness a long piece in Die Welt which talks of a "power struggle" in the Commission, ostensibly over the REFIT programme.

This suggests a third element to the programme, adding an ideological edge, where there is a definite attempt to reduce EU regulation and return powers, albeit limited, to Member States. It is this aspect which has captured the attention of Die Welt and indeed the British media that have bothered to cover the story, as with the BBC's Chris Morris. Yet, while there may indeed be some controversy within the Commission as to how far "deregulation" should go, the very existence of the dispute serves further to obscure the globalisation agenda. 

We have then individual Commissioners arguing about what should or should not be included on Barroso's entbürokratisierungsliste, with no one admitting that the list is primarily determined by global standard-setting agreements, and the need to maintain the global harmonisation programme.

As for the British end, our ministers are, so often, babes in arms when it comes to EU politics. According to the Financial Times, business minister Michael Fallon, actually welcomes this initiative. Completely unaware of its hidden depths, he declares it to be "a response to a concerted push by the UK and our allies to cut EU red tape", and complains that it does not go far enough.

One can understand why this is so, given the complexity and obscurity of the links with global standard-setting bodies, and the reluctance of the European Commission - and our own mandarins - to point them out. But one can also understand the Commission's reluctance to clarify what is going on. After all, if people realised that so much regulatory activity was now carried out at a global level, they might start asking what the EU was for.

They might also start to exhibit real concern about the growing nexus between the European Commission and global standard-setting bodies, building under our very eyes a world government to administer global governance. Tie this together with apparently unrelated issues, such as the Commission's comitology power grab (which gives the Commission unrestrained power to make new regulations), and there is very good reason to be concerned - all the more so for the lack of an openly declared agenda.



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