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The Malmstrom Mystery

euraffex insights Sep 29, 2014

© European Union 2014As the European Parliament’s hearings of the Commissioner-designates are about to begin, stories about several controversies and questions about several of the potential new Commissioners have arisen.

In some cases, this has to do with a Commissioner-designate’s allegedly too close relations with a certain sector or industry, comments they’ve made under the election campaign, the way they got nominated, or maybe the government they have been serving in.

For the Swedish candidate (and current Vice-President of the Commission) Cecilia Malmström the course of the controversies are, however, a bit different. In this case, it is about trade and questions & answers. Most of all it is, however, about a changed answer.

The missing comment

Written communicationThe story really took off last week on twitter, when various tweets could announce that Malmström was ready to remove the Investor-State Dispute Settlement-mechanism (also simply known as ISDS) from the TTIP negotiations. The S&D-group even made a press release on the issue, in which they claim it as a major victory for the S&D Group. In the press release, the Group’s spokesperson on International Trade, David Martin, says:

That could have been that: A Commissioner-designate makes a comment that will be hailed by many MEPs just before her hearing – and Voila, some critique is now removed. It is what happened next that is interesting: The joy was, it appears, premature. Malmstrom replies back that “The sentence that everybody is so excited about on ISDS/TTIP is not written by me in the final version of My answer to the EP“.

This of course begs the question – then who wrote it? And who approved that it was included in the text to the Parliament? Or is it rather that it simply turned out to be too controversial a statement?

People who are interested in this part of the story should read it on the website of blogger, commentator etc. Jon Worth. He has a detailed description of parts of the whole affair on his blog – and it is well worth a read.

One thing was for sure – by now the issue was certain to pop up in today’s hearing.

A new version – the mystery continues

@2014 EuraffexAs if this was not enough, things got even more interesting when the European Parliament’s INTA Committee on Sunday morning received a new version of Commissioner Malmström’s replies. The reason for sending the new version should be that there “was a mistake” in the version they had already received.

For the Committee secretariat to do this (and on a Sunday) it is clear that some pressure from the Commission must have been applied, which of course makes it even more interesting to find out what could have caused it.

The “mistake” turned out to be the part about the ISDS. This was now changed, so that Malmström no longer was so unequivocal in her willingness to remove it. In the version the MEPs received on Friday 26 September (forming the basis of the S&D press release) the text concerned reads (the underlining is ours):

As the President-elect Juncker has committed himself to in his Political Guidelines – and I quote –, “the Commission will negotiate a reasonable and balanced trade agreement with the United States of America, in a spirit of mutual and reciprocal benefits and transparency. Europe’s safety, health, social and data protection standards or our cultural diversity will not be sacrificed on the altar of free trade. No limitation of the jurisdiction of courts in the EU Member States will be accepted in this context; this clearly means that no investor-State dispute settlement mechanism will be part of that agreement.” I fully support this approach of the President-elect and will work in this sense in the negotiations, which are ongoing and where this issue is on the table.

However in the version of Sunday 28 September this part of the document has been changed to the following:

This is of course particularly the case of the ongoing negotiations with the United States. As the President-elect Juncker has committed himself to in his Political Guidelines – and I quote –, “the Commission will negotiate a reasonable and balanced trade agreement with the United States of America, in a spirit of mutual and reciprocal benefits and transparency.” He stressed that “Europe’s safety, health, social and data protection standards or our cultural diversity [will not be sacrificed] on the altar of free trade”. And he made clear that he will “not accept that the jurisdiction of courts in the EU Member States is limited by special regimes for investor disputes. The rule of law and the principle of equality before the law must also be applied in this context.” I fully support this approach of the President-elect and will work in this sense in the negotiations, which are ongoing and where this issue is on the table. It will have to be addressed.

As can be seen, the clear support for removing the ISDS is now missing, and focus is now only on the quote from Juncker. What exactly Malmstrom hoped to achieve by this is a bit unclear because – if anything – it has only served to increase focus on a point that is clearly a sore spot for her.

MEPs are bound to ask questions about the first version, the second version, why there are two version of a document – and not least what she actually thinks of the ISDS question. Furthermore, at least some of them are likely to demand as clear a statement from her on the topic as was in the first version of the document.

For the technicalists

AnalysisAdding to the subject of the changed wording is that the deadline for replying to the Parliament was 26 September, not the 28th. So if Team Malmström will claim that only the latest version of the reply is the valid one, then the Swedish candidate technically answered the members of the European Parliament too late.

While not nearly as problematic as changing your answer, it might add ammunition to her critics. After all, it is always useful to spice up a politically grounded critique with highlighting technical and/or procedural errors.

Alternatively, the Committee could decide that it is only the version arrived in time that is valid, thereby disregarding the changed version altogether – except of course for when it comes to the questions of the MEPs…

The Committee is not likely to ignore this turn of events, nor is the S&D Group likely to accept having a major victory taken away from them.

Get the popcorns ready

IMG_6911 by CLF on Flickr (via Sprixi).It is safe to say that the hearing of Commissioner Malmström just got a whole lot more interesting… and we don’t need a crystal ball to predict that as you read this,  in many MEP-offices they will be busy re-writing questions for the Commissioner-designate, to focus on the issues of the changed text, as well as of why the reply then arrived too late.

In the time before the session starts, following the websites of selected MEPs and commentators might provide for a good warm-up for the hearing. As will following what happens on twitter (you might want to follow the hasthag #EPHearings2014) and other social media.

Besides that, readers might also want to unplug the phones, get the intern to make them popcorns, and between 14:30 and 17:30 today be glued to the screen, watching the streaming of the INTA hearing.

The other documents for the hearing can be found here.

As always, we are happy to hear your comments or receive tips from you.

3 Responses to “The Malmstrom Mystery”

  1. Reply Kala says:

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    • Reply Euraffex says:

      Dear Kala
      Thank you very much for your comment – We are happy to know that you like what we write.
      Remember that if you don’t want to miss our posts, then you can sign up and receive an email whenever there is a new post on Insight.

      Kind regards
      The Euraffex team

  2. Reply published here says:

    I could not resist commenting. Perfectly written!

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