Recent developments in areas of US – EU discussions

1. The fight against ISIS

In a rare speech from the Oval Office on 6 December, President Barack Obama sought to calm Americans after last week’s terrorist attack in California, insisting that his administration’s expanding campaign against ISIS will succeed in reducing threats of terrorism, and warning against the wholesale vilification of Muslims. His address prompted more attacks from those who have been demanding a new and more forceful strategy.
After confirming that the San Bernardino shooters were, in fact, inspired by ISIS at the beginning, he described his plan for defeating ISIS in four parts:

1. Continue the bombing campaign against ISIS in Iraq and Syria where airstrikes are taking out its leaders, heavy weapons, oil tankers and infrastructure.
2. Help ISIS’s enemies by continuing to provide training and equipment to tens of thousands of Iraqi and Syrian forces fighting ISIS on the ground.
3. Work with allies to prevent ISIS’s ability to conduct attacks abroad. Since the attacks in Paris the US has surged intelligence-sharing with European allies and it’s also working with Turkey to seal its border with Syria.
4. Broker a solution to the civil war in Syria so as to allow the Syrian people, US allies but also countries like Russia, to focus on the common goal of destroying the common threat that is ISIS.

He also called on Congress to authorize the use of force for the ISIS war and he called for new gun control reforms, including barring anyone on the no-fly list from buying a gun. The president said little about improving the administration’s efforts to counter the Islamic State’s propaganda operation but White House officials had said they hoped to enlist the help of Silicon Valley executives to stem the reach of Islamic State propaganda.

2. Ukraine-Russia

The situation between Russia and Ukraine is still deadlocked. The most recent and immediate issue between the two is the suspension of Ukrainian electricity supplies to Crimea. The disruption of electricity supplies from the Ukrainian mainland to Crimea began on 20-22 November. Russia has made no formal response except to call on Ukrainian authorities to repair the electricity lines as soon as possible, and the United States and European Union have remained quiet on the matter.
In the meantime, Russia and Ukraine held talks recently on the status of Ukraine’s trade agreement with the EU. Russia has warned that it will restrict all agricultural imports from Ukraine starting 1 January, when the economic component of Ukraine’s association agreement with the Union comes into effect. Russian, Ukrainian and EU officials have held trilateral talks over the course of the year to avoid such restrictions, but no progress has been made. A meeting on 1 December between Russian and Ukrainian representatives mediated by EU Trade Commissioner Cecilia Malmstrom ended without an agreement.
Russia and Ukraine have also made very little progress in broader strategic negotiations. The Minsk talks saw some success in September and October, when the cease-fire between pro-Russia separatists and Ukrainian security forces was observed almost completely, but fighting has more recently increased along the line of contact between the two sides in eastern Ukraine and there is still a failure to advance the political components of the Minsk agreements. Russia is pushing Ukraine and the Europeans to give the separatist territories more autonomy with constitutional amendments, but Kiev and the West insist that Moscow must give back control of the border between Russia and the separatist territories first. The two sides are interpreting the Minsk agreement differently, making it difficult to move toward a lasting resolution of the conflict. The EU is all but certain to extend sanctions against Russia for six months at the European Council meeting on 18 December.

3. TTIP

Since the last round of negotiations in October in Miami, the progress on TTIP has been mainly in what concerns transparency. Commissioner Malmström announced the enlargement of access to consolidated negotiation documents for all Members of the European Parliament, as well as to members in the national Parliaments, in reading rooms in the respective Ministries.
Further advances have been made on the agricultural side of things, with negotiations begun on the Sanitary and Phytosanitary issues. This is important due to the expectation that all agri-related matters would be left for the ‚end-game‘ of the negotiations.
The TPP agreement and the WTO are more present on the Congress agenda – with next week’s Ministerial conference in Nairobi and the US statement that if no agreement will be found next week, than this would signal the end of the Doha round. The US is largely perceived as having no interest in pursuing WTO negotiations. Countries like India and China put the blame on US and Europe for the collapse of the Doha Round and in pursuing parallel negotiation tracks.

United States Trade Representative Mike Froman will be in Brussels this week (Thu, 10 Dec 2015) and will reportedly discuss public procurement matters with the Trade Commissioner.

4. Safe Harbour Agreement

On 6 October 2015, the European Court of Justice (ECJ) ruled that the Commission’s adequacy decision on the EU-US Safe Harbour arrangement was invalid (Schrems ruling). Thus the Safe Harbor framework – regularly criticised and to which the Commission had submitted 13 recommendations to the US side – was ruled invalid, opening the way for renegotiation.
Faced with the criticism of creating uncertainty for the transatlantic flows of information essential to many businesses, the Commission has issued Guidance on the possibilities of transatlantic data transfers following the Schrems ruling until a new framework is put in place (these alternative data protection mechanisms are standard data protection clauses in contracts between companies exchanging data across the Atlantic or binding corporate rules for transfers within a corporate group).
Negotiations for a new Safe Harbour is in the view of the Article 29 Working Party (where all data protection agencies of the Member States are represented) part of the solution. However, the Article 29 Working Party announced that if, by the end of January 2016, no appropriate solution is found with the U.S. authorities, and depending on the assessment of alternative tools for data transfers, the Data Protection Agencies will take all necessary and appropriate action, including coordinated enforcement action.
The Umbrella agreement (on which negotiations were finalised recently) is different than Safe Harbour. It does not itself enable data transfers. Rather, it sets high data protection standards in the area of police and criminal justice cooperation. The Umbrella agreement will improve the protection of personal data of Europeans in the U.S. as it will make sure that citizens will have recourse to judicial redress possibilities in the U.S. in case of privacy breaches, once the US Congress has adopted the respective draft Bill (N.B. the Judicial Redress Act, initiated by Congressman Sensenbrenner is still blocked in the Senate).

5. Passenger Name Record Directive

The Justice and Home Affairs Council recently confirmed a deal on the EU Passenger Name Record (PNR) Directive. The Parliament’s Civil Liberties Committee lead negotiator, Timothy Kirkhope (ECR, UK) expressed satisfaction that the compromise text he had put forward was accepted by the Council.
The draft directive will be put to a vote by the European Parliament as a whole in early 2016 and formally approved by the EU Council of Ministers. Member States will have to transpose the EU PNR directive into their national laws at the latest two years after its entry into force