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In issue 10, Kairos devoted a special report to the negotiations to create a transatlantic market. We return here with a possible concrete consequence of these transatlantic negotiations.

The scene takes place somewhere in Europe, in a region whose subsoil is full of a precious commodity: shale gas. Would we be ten thousand years back in time, at a time when Christ had not not yet seen, that this news would not make anyone shudder. Without technologies to fracture the rocks, no shale gas! Let us add that the mentalities of the time prevented from considering the subsoil (and more widely nature) as an inert mass of raw materials to be exploited as soon as possible. But we are in the 21ème century AD, and the technologies to exploit shale gas do exist. As for mentalities, they are divided into two radically opposed camps. 

For the energy industry, depriving ourselves of a natural resource that lies dormant under our feet is all the more idiotic given that we in Europe are largely dependent on foreign countries for our energy supply. Shale gas is therefore a way to reduce energy dependence thanks to a local resource. 

Conversely, for citizens seeking to preserve the environment in which they live, shale gas is a horror. There are several reasons for this. In the short term, it is established that shale gas is a very large emitter of greenhouse gases: to encourage its exploitation is therefore to accelerate global warming and the countless disasters that go with it. In the long term, shale gas could also be very problematic: to exploit it, it is necessary to fracture the rocks in which it is trapped. Since little is known about the impact of such fractures on the stability of the subsoil, this could lead to seismic failures, i.e. earthquakes. Above all, the fracturing of rocks requires the use of chemical products: by injecting them very deeply into the subsoil, there is a risk that they will be diffused into the water table. The rest is obvious: if these chemicals turn out to be toxic, they will pollute the very heart of the aquatic reserves on which we depend to live… 

How to resolve this divergence of views between the energy industry and civil society? In a democracy, the least we can expect is to have debates where the arguments of each side are exposed and the final decision depends on a well-informed public opinion. Unfortunately, we are very far from it, the main part of the debate being summed up in a general indifference to a power struggle between industrial lobbies and environmental associations. 

But the situation could get worse. At issue: the content of the transatlantic negotiations. 


In the week of March 10, 2014, Americans and Europeans (whom no one elected) met in Brussels to conduct the fourth round of negotiations to create a transatlantic market. Among the topics on the table: the strengthening of intellectual property rights. 

For the multinationals that are agitating in the shadow of the negotiations, this strengthening of intellectual property rights is a double boon. Firstly, and contrary to the official discourse evoking a « free trade » treaty, it would allow them to be protected from competition thanks to the registration of patents. Secondly, the challenge is to broaden the scope of patents, either by giving them a longer duration or by applying them to new fields. For example, the United States has allowed the online retailer Amazon to file a patent on a method of commerce: « one-click shopping. It is a question of being able to order a product via Internet, without systematically re-encoding all its data (in particular its bank card number). Thanks to this patent, Amazon can impose the payment of royalties to competing companies using the same sales procedure… on Uncle Sam’s territory. Unlike the United States, Europe currently considers this type of patent to be abusive. 

Another difference between the European and American legislation is that in the United States, shale gas companies have obtained a « trade secret » classification for the exact list of products they use to fracture the rocks. Therefore, if any of their chemicals were to pollute the groundwater, their responsibility would be virtually impossible to prove. This is a kind of right to pollute with impunity! 

One of the concrete issues at stake in the transatlantic negotiations is whether or not multinationals will be allowed to use such rights to impunity on European soil. Given our pro-precautionary culture, this would likely strengthen the camp of those opposed to shale gas use. Yes, but… there is a trick that negotiators close to the multinationals have thought of. This trick is the right for companies to file lawsuits in international tribunals against states that put in place legislation deemed harmful to their commercial interests. 

Wherever such legislation exists, governments are being taken to court by companies demanding the right to override governmental wishes. As an example, in September 2013, invoking the « free trade » treaty linking Mexico, the United States and Canada (NAFTA), the energy company Lone Pine filed a complaint against Canada in an international tribunal. The origin of the conflict? Quebec authorities have declared an ecological moratorium on shale gas development in a region crossed by the St. Lawrence River. While this dispute has not yet been resolved, the legal proceedings involved are extremely costly (lawyers’ fees can be as high as $1,000 per hour, while lawyers called upon to arbitrate the disputes are paid $3,000 per hour). Moreover, this type of court is extremely favorable to commercial interests (Slovakia was condemned in 2012 for prioritizing the public health of its citizens over the profit margins of health care insurance companies). In this case, Lone Pine isn’t pulling any punches: the company is claiming $250 million (U.S.) from Canadian taxpayers! 

Incredible but true: if the transatlantic negotiations succeed, and if their market logic is pushed far enough, governments wanting to protect the health of their population could be taken to international tribunals for decisions contrary to market interests. Worse: the multinationals could obtain « commercial secrecy » clauses that would mean impunity, as they would prevent any link between their industrial practices and any pollution they may have caused. 

In this political universe where the citizen is banished, there are gaps and loopholes. The next big breach will be the right of multinationals to file lawsuits against states. Although it had no intention of doing so at the outset, the European Commission was forced to launch a public consultation on the subject. Where? When? Through which site? Impossible to answer at the time of writing this article, but the launch of this public consultation should be imminent. Kairos will tell you about it on its website as soon as possible. As well as the numerous citizen initiatives that mobilize and raise awareness on this subject. 

Bruno Poncelet

Co-author (with Ricardo Cherenti) of the book: The great transatlantic market. Multinationals against democracy!published in 2011 by Bruno Leprince (to be reissued in April 2014), and Europe, unauthorized biography. From the « American peace » to the « civilization-trash », published by Aden (released April 2014). 

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