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The trade negotiators of the EU Commission have insisted repeatedly and publicly (e.g. at a hearing of the Greens/EFA in the European Parliament on 5 March 2014) that they have no mandate to negotiate over data protection rules. This was also emphasised by EU justice commissioner Viviane Reding in a speech in Washington in October 2013, in which she warned against “bringing data protection to the trade talks” on the grounds that “it is a fundamental right and as such it is not negotiable”.
The negotiation mandate for the EU Commission instead refers to Article XIV of the General Agreement on Trade in Services (GATS) of the World Trade Organization. Article XIV contains a general exception clause stipulating that “nothing in the agreement may be construed to prevent the adoption or enforcement by any member of measures […] necessary to secure compliance with laws or regulations […] relating to […] the protection of the privacy of individuals in relation to the processing and dissemination of personal data.” The EU Commission’s negotiation mandate states in Article 18 that, “The Agreement will not preclude the enforcement of exceptions on the supply of services justifiable under the relevant WTO rules (Articles XIV and XIVbis GATS).” Article XIV of GATS was indeed copied verbatim into a draft text of the TTIP agreement proposed by the EU Commission negotiators in July 2013 and leaked in February 2014.
So all is well, then? Certainly not. This is only the mandate for the EU negotiators. In any international agreement, it takes at least two to tango.