3. Prospects for US–EU Trade Talks in the Trump Era
At their July 2018 meeting, President Trump and European Commission President Juncker opened the door for new US–EU trade talks. As already noted, with USTR Lighthizer having officially notified Congress of the administration’s intent to negotiate a trade agreement with the EU in October 2018, and with the publication of the detailed negotiating objectives in January 2019, the US could have theoretically started official negotiations with the EU as early as mid-February 2019. The European Commission has also been following up on different elements of the joint statement from July 2018, including the submission of draft negotiating mandates – one concerning the elimination of tariffs for industrial goods, and the other regarding conformity assessment – to the Council of the European Union. The EU national governments now have to approve the mandates – which is expected to happen in March 2019 – before official negotiations can begin.60
In the preparatory phase of trade negotiations, the European Commission usually conducts an informal scoping exercise, which sets out the content and level of ambition of what both parties wish to negotiate, before getting the Council’s green light on the negotiating mandate.61 However, during the 90-day period of consultation required by TPA, the US was unable to conduct a scoping exercise. At the time of publication of this paper, both sides had not yet agreed on the scope of the trade negotiations.
Whether a US–EU trade agreement can be reached will largely depend on the results and speed of forthcoming negotiations. If no rapid progress can be made, President Trump’s patience with the EU may run out, leading to renewed tension over transatlantic trade. Trump has already shown signs of impatience with the EU, again raising the threat, in October 2018, of US tariffs on imports of cars and automotive parts from the EU.62
The European Commission has warned that it will suspend negotiations with the US if the Trump administration does not respect the commitment made in July 2018 to abstain from adopting new measures against the EU.
In the event that the US does hit the EU with automotive tariffs, transatlantic trade talks would derail. The European Commission has warned that it will suspend negotiations with the US if the Trump administration does not respect the commitment made in July 2018 to abstain from adopting new measures against the EU.63 In other words, unilateral tariffs on imports of automobiles and automotive parts represent the ultimate obstacle to a US–EU trade agreement.
Limited scope
As outlined in the joint statement by Trump and Juncker, the US and the EU are ‘work[ing] together toward zero tariffs, zero non-tariff barriers, and zero subsidies on non-auto industrial goods’.64 But the prospects for such an agreement look slim, for a number of reasons.
First, an agreement that excludes agriculture and automotives may violate the rules of the WTO, which stipulate that free-trade agreements should cover ‘substantially all the trade’ between the negotiating parties.65
Second, for now, the US and the EU differ greatly on the potential scope of trade talks. Within days of the July 2018 meeting between Trump and Juncker, fissures appeared over whether to include agriculture.66 These differences remain. While the US negotiating objectives call for securing ‘comprehensive market access for U.S. agricultural goods in the EU’,67 the European Commission is aiming for a trade agreement that is ‘strictly focused on the removal of tariffs on industrial goods, excluding agricultural products’.68
Third, many within the EU believe that the talks will eventually need to include the automotive sector and address public procurement (to better enable EU firms to bid for public contracts in the US), which would be anathema to US negotiators.69 The Trump administration’s negotiating objectives make it very clear that the US will exclude state and local governments from public procurement commitments being negotiated and keep in place domestic preferential purchasing programmes such as ‘Buy America’.70 These same issues obstructed the TTIP talks and threaten to derail the impending talks yet again.
Fourth, a resumption of the TTIP negotiations – even under another name – would revive public opposition to the deal. Civil society organizations such as Friends of the Earth Europe have criticized the Trump–Juncker agreement as a TTIP revival that could undermine European regulations.71 They fear that many controversial aspects of the TTIP talks – including the potential compromising of European restrictions on genetically modified food or the EU regime to control the use of toxic chemicals – would be back on the negotiating table. Unsurprisingly, EU officials were quick to emphasize that the trade deal they plan to negotiate with the US ‘is not TTIP 2.0’.72
These significant differences and developments indicate that the agreement between the US and the EU would have a more limited scope than the TTIP negotiations, and perhaps be even more restricted than initially set out in July 2018. Already, the USTR notification letter sent to Congress in October 2018 and the negotiating objectives from January 2019 appear to have a narrower focus than the Trump–Juncker communiqué, pointing only to the aim to ‘address both tariff and non-tariff barriers and to achieve fairer, more balanced trade’; no reference was made to the more ambitious goals of zero tariffs and zero non-tariff barriers; nor was there any mention of subsidies.73 The European Commission’s draft negotiating mandates are also very narrow: one focusing on the elimination of tariffs for industrial goods; and the other on conformity assessment, which would help make it ‘easier for companies to prove their products meet technical requirements on both sides of the Atlantic’.74
Parallel negotiating tracks
The USTR letter to Congress and the negotiating objectives state that the US could pursue talks with the EU ‘in stages, as appropriate’.75 Rather than following the traditional approach – i.e. striking a comprehensive trade deal by means of a single-track negotiation where nothing is agreed until everything is agreed – future US–EU trade talks may be pursued via parallel tracks where each issue is addressed according to its own timetable.76
Rather than following the traditional approach – i.e. striking a comprehensive trade deal by means of a single-track negotiation where nothing is agreed until everything is agreed – future US–EU trade talks may be pursued via parallel tracks where each issue is addressed according to its own timetable.
US and EU negotiators seem to be willing to go down this path, as both parties to the Executive Working Group have indicated that it may be possible to reap ‘an early harvest in the area of technical barriers to trade’.77 Any future trade negotiations could then lead to ‘a more limited trade agreement, focused on tariffs on goods only’.78 The talks concerning regulatory engagement are largely influenced by a paper from the European Commission outlining areas of cooperation with the US on topics including pharmaceuticals, medical devices, car safety, cybersecurity and (to some extent) food safety.79
The advantages of a more piecemeal, parallel-track approach, building on previous preparatory work, are numerous. A joint US–EU report on the progress of the TTIP talks from January 2017 (when the negotiations were essentially frozen) highlights ‘common ground’ and ‘good progress’ on regulatory cooperation.80 Rapid progress could be made in some areas of the negotiations by harvesting the low-hanging fruit first. This could potentially create the goodwill that may help the EU keep the threatened US tariffs on automobiles and automotive parts at bay.
But while a deal on regulatory cooperation with regard to car safety might be achievable quickly (given that the US and the EU made a lot of progress on this front during the TTIP negotiations), any negotiations about regulatory cooperation in other areas – in particular chemicals that may be harmful to humans or the environment, and cosmetics – would be likely to encounter the same hurdles and backlash as they did during the TTIP talks. Thus, the conclusion of any deal focused on broader regulatory cooperation would be a slow and difficult process. Previous efforts towards regulatory cooperation, dating back to the 1990s, have highlighted that it is a sensitive and controversial issue that raises legitimate questions about a potential lowering of protection for consumers and the environment, or about the ability to regulate in the public interest.
In short, the focus on regulatory cooperation, and a quick win in the area of automotive safety regulations, is mostly a political gesture that offers a near-term opportunity. Notably, some regulatory issues will be highly contentious, and will likely contribute to an arduous process in the longer term.
Can the EU speak with one voice?
The prospects of success in future transatlantic trade negotiations will also depend on whether the EU is able to speak as one. Differences between France and Germany over how best to respond to the US steel and aluminium tariffs notably revealed internal fissures within the EU. Given its dependence on exports, Germany was much more willing to strike a deal in order to avoid increased tensions that might result in the US imposing tariffs on imports of automobiles and automotive parts. In contrast, France took a much tougher line, stating that the EU would have no choice but to enter into a trade war with the US.81
Italy’s present government, a Eurosceptic coalition of the Lega and the populist Five Star Movement, could also undermine the EU’s ability to hold a unanimous line on trade. For instance, Italy has threatened to block the ratification of the EU–Canada Comprehensive Economic and Trade Agreement (CETA), which needs to be approved by all EU member states to fully enter into force, over concerns that the deal does not adequately guarantee that speciality food or beverages originating from specific locations in Europe are the only products allowed to be sold under their respective names.82 Thus, strong interests concerning the protection of these so-called geographical indications by Italy (and other EU member states such as Greece, Spain and Portugal) could become a sticking point in future US–EU trade negotiations – as occurred during the TTIP talks.
The fact that the EU has started negotiations with the US even though the latter did not remove the steel and aluminium tariffs has exposed the abandonment by the EU of its initial assurance to not negotiate ‘with a gun at its head’.
Despite these internal divisions, the EU has so far responded to the Trump administration’s action on trade with a united front. But any cracks may widen, as US–EU trade talks intensify, as long as the metal tariffs remain in place. The fact that the EU has started negotiations with the US even though the latter did not remove the steel and aluminium tariffs has exposed the abandonment by the EU of its initial assurance to not negotiate ‘with a gun at its head’.83 On this occasion, President Trump’s pressure tactics have given the US a small tactical victory. Moreover, the EU risks demonstrating a further volte-face as regards its pledge not to sign free-trade agreements with countries that do not ratify the 2015 Paris Agreement on climate change, from which the US has withdrawn under Trump.84
The UK’s impending withdrawal from the EU – which will mean the loss of a significant pro-free-trade voice within the bloc – also has consequences for the EU’s ability to speak with one voice in negotiations with the US. Brexit, and its implications for the future of UK–EU relations, causes uncertainty over the degree to which the UK will continue to be a gateway for the US to the EU27 single market. This, in turn, has consequences for any concessions that the EU and the US may be willing to make in their bilateral trade talks. President Trump has been a vocal supporter of the UK’s decision to leave the EU, and the US administration has expressed its desire to strike a bilateral trade deal with the UK after Brexit.
Complicating matters still further will be the forthcoming elections to the European Parliament in May 2019. There can be expected to be significant changes – not only to the complexion and tone of discourse of the legislative body that will ultimately have to approve any future EU trade deal with the US, but also in terms of the selection of the next president of the European Commission – the executive body that prepares and negotiates the EU’s international trade agreements.
From mid-2019, there could be a significant shake-up in the composition of the EU Parliament, with UK parties no longer represented, traditional social democratic parties losing support in many countries, new parties entering the parliament for the first time (including, it may be expected, French President Emmanuel Macron’s En Marche) and Eurosceptic and anti-EU forces expected to squeeze traditional centrist groups. Even though the pro-trade, centre-right European People’s Party (EPP) is likely to remain the largest grouping overall, members from far-right and far-left parties could add their voices to reservations already being expressed in the European Parliament about a potential US–EU free-trade deal. The appointment of a new European Commission, including a potential replacement for Cecilia Malmström, whose term as Commissioner for Trade will end on 31 October 2019, could have implications for transatlantic trade negotiations. If no significant progress in the trade talks can be made before the elections to the European Parliament, they are unlikely to advance until after 2019.
Lessons from other trade negotiations
Other recent US trade negotiations – and ongoing trade disputes – will also have an impact on US–EU talks. For instance, the US may want to use certain aspects of the recently renegotiated United States–Korea Free Trade Agreement (KORUS) or the USMCA as a template for its talks with the EU. So far, however, the EU has been unwilling to bow to what it perceives as troublesome demands by the Trump administration in its most recent trade negotiations.85 For instance, as part of the updated KORUS agreement, South Korea agreed to a quota set at 70 per cent of the average annual volume of its steel exports to the US in 2015–17. In exchange, South Korea received a permanent exemption from US steel tariffs.86 The EU believes that the use of such voluntary export restraints violates WTO rules.87
The USMCA also contains lessons for the EU as it contemplates its trade talks with the US.88 On the positive side, one important implication is that a trilateral deal was reached despite the US’s preference (and earlier efforts) to strike separate, bilateral agreements with Mexico and Canada. Another inference is that the USMCA kept most of the old NAFTA framework in place, with some additional provisions originating from the proposed Trans-Pacific Partnership (TPP – from which Trump withdrew the US shortly after his inauguration in January 2017). This highlights some willingness in the US administration, notwithstanding the Trumpian trade ideology, to be flexible and to make compromises.
At the same time, if the US uses the USMCA as a blueprint for an agreement with the EU, this could have negative repercussions for the EU. Two particular USMCA provisions stand out as being potentially problematic for the EU if the US attempts to use similar language in a US–EU deal. First, the USMCA’s Article 32.10 states that any one of the three parties must inform the other two in advance if it intends to start free-trade negotiations with a ‘non-market economy’ (such as China), and that the other partners can terminate the USMCA if those negotiations lead to a free-trade agreement.89 As such, if a transatlantic trade agreement were to follow this line – and the US negotiating objectives point in that direction90 – it would render more difficult any future EU trade talks with China, which is now the bloc’s second largest trading partner (after the US). Additionally, the USMCA has a 16-year ‘sunset’ clause, which implies that the terms of the agreement will expire once that period has elapsed unless each party confirms its wish to continue the agreement. The three parties will meet six years after the USMCA comes into force to decide whether to renew the agreement for a further 16 years.91 While the renewable 16-year term is significantly longer than the five-year ‘sunset’ clause initially advocated by the US, it does suggest that a future US–EU trade deal would also come with an expiry date.
A final lesson that the USMCA holds for the EU concerns the exemption from tariffs. Even though Mexico and Canada sought an exemption from the US’s steel and aluminium tariffs, the tariffs remain in place. Mexico and Canada did, however, persuade the US to enter into side agreements that would protect them from tariffs on imported automobiles and automotive parts.92 This suggests that the EU may have to be willing to submit to continued US tariffs, even in the event that transatlantic trade talks progress and a deal is concluded.
Meanwhile, EU officials have stated that tactics used by President Trump to pressure Mexico and Canada into concessions during the USMCA negotiations will not work in transatlantic trade talks. They believe that the EU’s size and trading power put the bloc on a more equal footing with the US.93 However, unless the bloc’s member states speak with one voice, the EU and US will not be an equal match. The US would quickly be able to take advantage of any internal fissures within the EU and use these as pressure points in the negotiations.
A simulation of US–EU trade talks in an era of protectionism
Simulation overview
In order to better understand how US–EU trade talks might play out in an era of protectionism, Chatham House organized a simulation exercise. The event, conducted on 6 September 2018, involved a group of early- to mid-career specialists drawn from think-tanks, academia, businesses and NGOs, from across Europe and the US.
Simulation exercises facilitate the modelling of the potential behaviours of different actors in a negotiation, in terms of the key interests they might adopt, and the tactics by which they might pursue those negotiation demands. They also enable the testing of how the various actors might respond to changes in the hypothetical negotiation environment and react to new developments as they occur.
This exercise, set in April 2019, simulated multilevel negotiations in the lead-up to and during a meeting of US and European trade representatives in Brussels. Negotiations proceeded in two stages: the first stage focused on the ‘domestic level’, and the second stage on the ‘international level’. During the first stage of negotiations, the US and EU teams, meeting separately, were asked to come up with an initial position statement (i.e. a list of negotiation demands and ‘red lines’ for their delegation). The second stage of the simulation involved the bilateral negotiations between the US and EU teams. At the end of the simulation, the lead negotiators were tasked with announcing whether or not they would recommend that the US and the EU should formally launch transatlantic trade negotiations, in accordance with their respective domestic procedures; and, if so, to state what should be the scope and level of ambition for the future trade talks.
Throughout both stages of the simulation, interest groups sought to influence the negotiations. The US and EU lead negotiators also consulted closely with their respective legislatures and other relevant government representatives. In addition, participants were required to take into consideration and respond to interjects, designed to reflect real-life negotiation pressures.
Simulation methodology and observations
Since the purpose of the simulation was to model how the US and the EU might negotiate in an early phase of potential future trade talks, participants were selected with relevant experience to play the roles of key government representatives and other stakeholders. In advance of the simulation, each participant received a brief of the negotiation interests for their individual role. These interests were based on extensive research by Chatham House staff. Participants were free to interpret the list of interests as they saw fit, but were directed not to act in complete opposition to their role’s perceived interests. They were authorized to use any tools or instruments within their remit to influence the negotiations.
Each team was headed by two lead negotiators from the US–EU Executive Working Group. These lead negotiators were the main interlocutors, and were tasked with achieving an agreement that met the interests of their entire delegation. The lead negotiators focused on striking compromises and seeking concessions – both within their own team during the first stage of the negotiations, and with the other team during the second stage. They requested stakeholder input, outlined offensive and defensive interests as well as red lines, and communicated their delegation’s positions in public and private statements and meetings.
The public-sector representatives (delegates from key US government departments, trade ministers from influential EU member states, and members of the US Congress and the European Parliament) played a critical role in the decision-making process. As such, they sought to advance their national or political interests in public and private communications with the lead negotiators, with their counterparts on the other team, or with relevant stakeholders among the business and NGO communities. Representatives from the US and EU legislative branches also reminded the lead negotiators of their role in setting the mandate for negotiations, and threatened to veto any future deal that crossed their red lines.
The private interest groups – including business, agriculture, environmental, consumer and labour representatives – tried to influence the negotiations through direct lobbying and other activities (such as announcing protests and releasing reports to influence other players and public opinion). Moreover, they built transnational coalitions with like-minded interest groups from the other team.
The US and European Commission presidents did not play an active role in the simulated negotiations. However, they featured in the exercise in a virtual sense, through interjects by Chatham House researchers.
Simulation analysis
Overall, the efforts by the US and the EU did not lead to a breakthrough agreement – at least not within the time frame of the simulation exercise. The lead negotiators from both sides deemed it premature to recommend the start of formal negotiations. Instead, they agreed to set up a Joint Regulatory Dialogue with the aim of enhancing engagement on standards and regulations for goods and services.
The simulation highlighted a number of issues. It displayed the variety of tools available for influencing negotiations as described in the observations above. Notably, one instrument that was not used in this simulation was the leaking of documents (whether to members of the other delegation, to interest groups or to the press). And while negotiators did at various points threaten to walk away from the talks, they ultimately did not do so and generally kept disruptions to a minimum. This could potentially indicate a bias in the simulated negotiation whereby participants have an inherent tendency to try to broker a consensus position because they work on transatlantic trade issues and broadly support increased cooperation and economic ties. Real-life negotiations could potentially be more fraught.
By simulating negotiations at the domestic and international level, the exercise modelled multilevel bargaining. The progress of the simulation underscored how disaggregated domestic interests and national veto players affect international trade negotiations, and highlighted that the US and the EU do not always operate as unified actors. In this respect, maintaining a united front was more of a challenge for the EU than for the US side. All the same, despite efforts by the US to engage in bilateral talks, the member states of the EU mostly deferred to the EU lead negotiators. Only on one occasion did Italy, France and Germany hold a separate discussion with US representatives without the EU lead negotiators being involved. Otherwise, the EU side took meetings together and coordinated internally. However, disagreement between the member states – particularly France and Germany – over how best to resolve the issue of US steel and aluminium tariffs in the name of national security revealed fissures, which made it difficult for the EU to maintain a united position during discussions with the US. Tactics – for instance, whether a guarantee by the US to not impose tariffs on automobile and automotive parts imports from the EU should be a prerequisite for transatlantic trade negotiations to start – were deliberated by the EU team in great detail.
Although their role in the negotiations was limited, non-governmental interest groups sought to leverage their influence by building transnational coalitions. For instance, the US and EU business lobby groups formed an alliance, as did civil society organizations on both sides of the Atlantic. Building on experience from the TTIP negotiations, they emphasized the need for stakeholder engagement and transparency in trade negotiations. But as the simulated talks were in an early stage, the US and EU lead negotiators’ response was minimal.
The simulation also underscored the issues that could potentially become sticking points in future US–EU trade talks. The two sides’ negotiators had to deal with concerns raised by the ‘America First’ agenda of the Trump administration. In particular, they tried to resolve the issue of US steel and aluminium tariffs in the name of national security, and that of the EU’s retaliatory tariffs. They also attempted to settle issues regarding a permanent exemption for the EU from tariffs on automobile and automotive parts imports, which the US had introduced prior to the talks (as part of the simulation setting). But those more recent issues were bracketed during the simulated negotiations to be discussed at a later point.
Instead, long-standing issues already highlighted during the TTIP negotiations proved to be the major stumbling blocks in the simulated negotiations. Agriculture and the related issues of geographical indications and food safety standards were the main sources of disagreement – both between the US and the EU, but also between various EU member states. Moreover, the opening up of public procurement markets was a contentious issue. The US had listed a chapter on investor–state dispute settlement (ISDS) among its offensive interests for a future trade agreement with the EU, but investment protection did not become a focus during the simulated negotiations – at least during the limited time frame of the exercise.
Participants largely ignored President Trump’s antics, which were simulated via interjects. For instance, a tweet by the US president criticizing Germany for widening the US’s trade deficit while not meeting its NATO defence spending commitments provoked little reaction, as did a tweet by Trump threatening to pull out of the WTO. Such interjects prompted brief debate among participants as to how best to respond, but the negotiations then continued relatively unchanged. This finding seems to parallel the real-world situation in which EU leaders focus on the actions of key US representatives, rather than on Trump’s own, often-shifting rhetoric.
Issues of shared global concern were barely addressed in the negotiations, which focused almost exclusively on efforts to further integrate the transatlantic marketplace. While each team briefly discussed the goals for reforming the WTO or tackling China’s unfair trade practices during the first stage of the negotiations (i.e. at the domestic level), the parties did not talk about increased cooperation on those issues during the international negotiation stage – again perhaps given the time constraints of the simulation.
Overall, the simulation provides insights into how future US–EU trade talks might play out in the dual context of the legacy of the TTIP discussions and the current US administration’s protectionism and ‘America First’ rhetoric. The simulation exercise also offers lessons for policymakers to adopt in real-life negotiations, as set out in the conclusion to this paper.
Transatlantic cooperation beyond a bilateral trade deal
In addition to pursuing a transatlantic free-trade agreement, the US and the EU are jointly committed to work closely together with like-minded partners to tackle unfair trade practices (widely understood to implicate China) and to reform the WTO.94 This is an encouraging sign that transatlantic cooperation on trade is not just limited to a future bilateral deal, and it harbours the potential to tackle the two issues that are arguably the most pressing and important for the future of the global trading system. Since the US and the EU are China’s two most important trading partners, a united US–EU front could potentially lead to real progress and compel Beijing to change its trade practices. But for this to happen, the US and the EU need to not only have a shared assessment concerning the problems, but also find common ground on viable solutions.
Since the US and the EU are China’s two most important trading partners, a united US–EU front could potentially lead to real progress and compel Beijing to change its trade practices.
In working with the US to address China’s trade practices, the EU is performing multiple balancing acts. First, while the EU shares the concerns of the Trump administration with regard to China, the bloc also opposes the US’s approach of using tariffs to force China to change its behaviour. At the same time, some voices within the EU and among its member states have acknowledged that even if they do not agree with the use of tariffs as a negotiating tactic, President Trump’s high-pressure approach may prove effective.95 The next balancing act involves the EU engaging with the US to tackle common concerns regarding China, while also trying to convince Trump to roll back the steel and aluminium tariffs and prevent the imposition of further tariffs. Finally, the EU is balancing its relationships with the US and with China – its two biggest trading partners – and will want to maintain a degree of cooperation with both. In the months and years ahead, it is likely to try to avoid a clear choice in siding with the US or China, and may opt for a hedging strategy.
As regards reforming the WTO, the EU has tabled some proposals with the goal of updating the rules so as to achieve a more level playing field and countering market distortions by China (though the country is not named directly).96 The EU’s proposals also seek to overcome the imminent deadlock of the dispute settlement system, due to the US’s blocking of appointments to the Appellate Body of the WTO (as described earlier in this paper). However, the US has already indicated its rejection of some of the EU’s suggestions.97 In light of the disagreement between the US and the EU, and the fact that all 164 WTO members need to reach a consensus on reform, the EU’s attempts at modernizing the global international trade body are likely to encounter many hurdles.