EU-Tunisia DCFTA: Good Intentions Not Enough

Agriculture: Tariffs and Standards

Both sides still maintain heavy protection of their agricultural sectors: For Tunisia this applies especially to milk, meat, cereals and beverages, while the EU in particular pro­tects southern European products such as olive oil, fruit and vegetables.

Exceptions are the decisive point, in the sense of excluding individual sensitive products from abolition of tariffs. The size of the list of exceptions and the length of the period granted for dismantling tariffs will be crucial for Tunisia. In 2016 the EU originally proposed ten years. Tunis regards this as much too short, as EU imports would very quickly present stiff competition in its markets. Finally, modalities for imposing protective tariffs in response to crisis will also need to be negotiated.

EU tariff quotas are currently principally relevant for olive oil. Tunisia is the world’s fifth-largest exporter, after southern Euro­pean EU member states, and olive oil ac­counts for 40 percent of its total agricultural exports. But for most categories of olive oil the amount that can be imported into the EU tariff-free is restricted by quotas. Follow­ing the 2015 terrorist attacks and the asso­ciated slump in tourism, Brussels twice increased Tunisia’s quota against consider­able resistance from southern European producers. The EU has promised another increase for 2018 on condition that Tunisia agrees to open its markets for selected agri­cultural products of its own choosing (“mini trade package”). To date Tunis has rejected this, even though it favours a sec­toral agree­ment – applying only to goods – over a comprehensive one. In fact a “mini trade package” would be a first step in that direc­tion. Treated oil mainly does not currently benefit from tariff preferences.

Strongly fluctuating yields have sometimes left the existing quotas unused. On the other hand, after the record olive harvest of 2018 – more than double the previous year’s – the entire export quota was already allocated by the beginning of the year. But Tunisian exporters can also export unlimited amounts of untreated olive oil to the EU tariff-free (outside the quota) if this is blended with oil produced in EU member states (“inward processing”). While this channel does generate export revenues for Tunisian producers, it cannot be communicated politically as a negotiat­ing success. Additionally this oil cannot be labelled and marketed as originally “Tuni­sian” and export volumes are subject to un­predictable business decisions.

The EU import regime for fresh fruit and vegetables includes seasonal quotas to pro­tect particular producers with higher tariffs during European harvest periods. A contro­versial “minimum import price” system also applies a tariff if the import price falls below a defined threshold; this systematically disadvantages low-cost suppliers like Tunisia. Concessions to Tunisia in this sec­tor would require the EU to create com­pen­satory mechanisms for its own producers, which are located mainly in southern member states.

Finally, standards, such as bacteriological thresholds, form a decisive obstacle to im­ports from Tunisia, especially for milk and meat products. Unlike with tariffs, bilateral agreements cannot grant more favourable arrangements on binding legal standards to particular trading partners: all refer to existing WTO standards. Private standards, such as those operated by food retailers, are more flexible – but not covered at all by trade agreements. They are more dynamic but as non-binding rules open room to improve terms for exporters. In fact private standards are often stricter and more de­manding than their statutory counterparts. The same applies to legally defined but voluntary standards such as those for organ­ic produce – which represents a fast-growing sector in Tunisia. While Tunisian producers are not required to observe all these standards, they are a precondition for operating in particular market segments.

Protected quality schemes like geographical indications (GIs) secure the marketing of par­ticular products, and are normally codified in trade agreements; the EU has proposed a long list of its own GIs. Tunisian GIs can not only boost value creation but also make a broader contribution to rural development, potentially through linkage to tourism activ­ities. Although the EU side has since 2016 repeatedly suggested that Tunisia make pro­posals on this issue, Tunis has not responded to date.

Regulation: Unclear Acquis Demands

In addition to product-specific standards, agree­ments within the neighbourhood frame­work (and with close EEA partners like Norway) require partners to adopt the EU’s acquis communautaire. This goes beyond classical European import regulations, with which every third state exporting to the EU must comply anyway. Adopting the acquis means not only adopting all the EU’s regu­lations, but also copying administrative structures and case law. That would, for example, require Tunisia to automatically apply future changes in EU food safety standards without any reopening of nego­tiations on standards within the DCFTA. Tunis – like Ukraine in its own earlier AA talks – criticises this as unacceptable in the absence of an accession perspective.

Nevertheless, adopting the acquis does of­fer advantages: it steps up the pressure to realise reforms in strategic food sectors that will ultimately promote the quality of pro­duc­tion. This is important for all trade, not only with the EU but also with other part­ners.

But actually for exports neither the acquis nor complete harmonisation with EU standards is required: mutual recognition of production processes offers an alter­native. In the manufacturing sector this has long been envisaged for Mediterranean part­ners: agreements on conformity assess­ment and acceptance of industrial products (ACAAs) seek to facilitate trade by recognising verification procedures. To date how­ever only one such agreement has been con­cluded, with Israel.

Textiles: Level of Processing

One third of Tunisian manufacturing jobs are in the textiles sector. A division of labour with the EU emerged in the 1970s: exploiting lower wage costs, European fab­rics are finished in Tunisia and reimport­ed to the EU under European preferential tariffs. The AA secures broadly open access to the EU market for textiles, but with dif­ferent tariffs depending on the degree of processing.

The current rules of origin within the AA may function as barriers to trade. Under the so-called “double transformation” rule, tariff exemptions apply only if two trans­formation steps have been completed, for example from yarn to fabric and from fab­ric to finished apparel. But in cases where Tunisia lacks the second processing indus­try a higher tariff will apply.

At the same time Tunisia is a signatory to the Pan-Euro-Med Convention (PEM), which permits the cross-border use of individual national tariff preferences in relation to in­puts from a large region covering the EU and most of its neighbours (“diagonal cumu­la­tion”). This encourages the devel­opment of regional manufacturing and value chains.

Tunisian textile processors argue for a “single transformation” rule, which would be a better fit for their current processing structure. That would also permit very cheap precursors from countries outside the PEM group – for example from Asia – to be processed without losing tariff pref­er­ences. However, such a simplification would override the PEM principle of uni­form rules for all signatories and could encourage other countries to seek exceptions too. It would also become even more difficult to differentiate this from the policy the EU pursues – with its Economic Part­ner­ship Agreements (EPAs) and the “every­thing but arms” regime – towards devel­op­ing countries, which so far profit exclusively from the “single transformation” rule.

Services: Labour Migration

To date the EU has proposed a mixed ap­proach: in principle, a positive list grants free market access in designated service sectors, while a negative list protects estab­lishments. The possibility of temporary migration of workers to provide services in the partner country (“Mode 4” in the services chapter) is especially important for Tunisia. While this channel could in principle be used to shape labour migration, the EU’s drafts so far lack specific sec­toral proposals.

Options for working in the IT and communications sectors appear especially im­portant to Tunisia. But such labour migra­tion would require visa and work permit arrangements that lie beyond the scope of the trade agreement. Those rules are still defined by the individual EU member states, and across all national regimes the maximum working stay is restricted to six months. Entrenched differences between national migration strategies prevent the EU from making concessions on Mode 4.

Investment: Access Only

The DCFTA only addresses investor access to the Tunisian market. The protection of investments is regulated in bilateral invest­ment treaties (BITs), which nineteen EU member states have concluded with Tuni­sia. Alongside the existing access rules these also include the much-criticised investor-state dispute settlement procedures under which businesses can sue states for com­pensation for expropriation. Tunisian crit­ics continue to insist mistakenly that the DCFTA would create such a mechanism.

Agricultural Sector: Use EU Offers

The EU could extend the implementation period, for example to the twenty-five years applied in most EPAs. In fact the Commission has even suggested that Tunisia could set its own timeframe. Tunis should make use of that opportunity. The proportion of exceptions from liberalisation could also be increased; in EPAs it is up to 25 percent.

The EU is also prepared to negotiate about increasing the quota for untreated olive oil under certain conditions. Such an offer was intended as an incentive for a “mini trade package” under which Tunisia would reciprocally open its markets to selected European agricultural products. Given that the autumn olive harvest season has just started, it would be reasonable to repeat this incentive for next year. But Tuni­sia could misconstrue it as blackmail. It should therefore be stressed that this basically corresponds to the Tunisians’ own proposal of a sectoral agreement. The EU should present the “mini trade package” as a step in precisely that direction, to gather initial experience with a view to a possible sectoral agreement. Ideally this would cre­ate the trust required for more ambitious steps. Additionally, new preferences for cat­egories of treated oil so far excluded could be offered as a step towards the gen­eral duty-free access envisaged under a final agree­ment.

European concessions on fruit and veg­etables are less likely in view of the existing competition situation. Yet the EU-Morocco Association Agreement, in which the EU granted Rabat greater market access than Tunis, demonstrates that leeway does exist.

Here the EU first needs to find an internal compensatory mechanism for its own producers, possibly in the context of the upcoming reform of the CAP. Tunisia could also push for a reduction in the tariff ap­plied in the minimum import price system. It would be more consistent to completely abolish the system, which is ultimately a hold-over from the strongly protective vari­able tariffs that were widely used in the past until they were largely abolished by the WTO’s 1995 Uruguay Round.

Tunisian GIs can encourage production and marketing of the kind of high-quality, high-value products that generate employment and drive development. Definitions are thus a matter of urgency, using a dynamic list as is usual in EU trade agree­ments. Possible products could include olive oil and dates produced in certain regions or using particular traditional methods. Establishing this sphere of pro­duction will require financial support from the EU to ensure adequate quality, good marketing structures and integration into broader rural development programmes.

The EU should also promote Tunisia’s ability to implement standards. And Tuni­sia should certainly also harness voluntary and private standards to incentivise exploi­tation of the full market potential of higher-value products. The EU has already offered a range of support including aid for trade measures like professionalising test labora­tories. The German Import Promotion Desk also offers targeted assistance to increase agricultural exports to the EU. But Tunisia should conduct its own analyses of support needs and prioritisation. In this, ecological standards must also be considered, as for instance better market access for olive oil might lead to an expansion of olive plan­tations, in turn increasing water and soil stress. Ecological regulation and labour rights will be covered by the agreement’s chapter on sustainability. Even if the chap­ter’s enforceability is limited, the ecological risks should be seen as a further argument to privilege quality and value over pure quantity.

Regulations: Clarity Essential

The term “acquis” triggers Tunisian fears and is a source of misunderstandings. It is therefore helpful to define more closely what “selective adoption” means and to help to enable Tunisia to make a choice. Above all the EU should strengthen its sup­port for the mutual recognition ap­proach – as pursued under the ACAAs – even if this is likely to be a longer-term affair in the food sector.

Textiles: Use Time-Limited Compromise

It is difficult for the EU to switch to the single-transformation rules of origin as applied to developing countries, because this could spill over to other PEM countries and also erode positioning vis-à-vis the EPA states. But Tunisia is also blocking the cur­rent revision of the PEM arrangement, which seeks to expand flexibility for easing tariffs on textiles outside the classical cloth­ing sector (such as sheathing for gardening equipment). Here the EU could make a time-limited offer to enable progress to be made both in PEM and in the DCFTA talks. At the same time it should be emphasised that Tunisia certainly profits from the cur­rent two-transformation arrangement, which can promote higher-value production. The establishment of such a production struc­ture should also be supported by additional EU funding.

Investment Protection: Benefit from New Model

EU-wide investment protection is recently often negotiated jointly with trade rules in agreements, however will be concluded in a separate agreement due to internal ratifi­cation requirements. Tunis can benefit from the improvements in the new EU-model as otherwise the old and limited member state BITs continue to apply to Tunisia. These potentially block future legal improvements envisaged through further domestic reforms, as such changes could lead to com­pensation claims on grounds of expropriation. The new EU approach leaves more scope for such legislative changes. Especially in relation to the search for more invest­ment, Tunisia should seek corresponding rules in an extra agreement.

Services: Communicate the Red Line

A services liberalisation permitting labour migration is currently unrealistic for the EU, given the level of disagreement be­tween member states over migration and refugee issues. This should be communicated clearly in order to avoid raising misplaced expectations.

Improve Impact Analyses

Tunisia insists – in part on account of pres­sure from its civil society – on an impact assessment funded independently of the EU before continuing negotiations, primarily to evaluate the existing association agreement. Even if the EU might regard this as a delay­ing tactic, it touches on what was until recently a deficit in the EU’s own analysis exercises: Its impact assessments were con­ducted long before the agreement was even concluded, still less implemented. Although the EU did institute annual impact report­ing in 2017, this could still be more system­atically linked to revision clauses providing for amendments and improvements.

Use Cross-Learning

Similar difficulties to those experienced with this DCFTA arose in comparable nego­tiations with the EU’s eastern neigh­bours, for example over the question of what adopting the acquis actually means. Advice from actors with experience in negotiating with the EU would therefore be desirable. An exchange of this nature – including lead negotiators – was arranged by the German-Tunisian Chamber of Industry and Commerce and the Bertelsmann Stiftung in June 2018 in Tunis – and could be insti­tutionalised.

African Free Trade Area Must Not Form Obstacle

Nearly fifty states – including Tunisia – have so far signed an agreement to create an African Continental Free Trade Area. In the longer term they will have to merge and consolidate their regional EPAs, bilateral Association Agreements and any DCFTAs concluded by then. That perspective needs to be taken into account already. Over and above individual needs, unifying elements such as harmonised rules of origin are im­portant. Despite the challenges presented by the ambitious long term objective of a pan-African free trade area it should not be abused to block any earlier regional and bilateral trade initiatives; instead the latter should be conceived as preparatory steps.

On the European side the upcoming elec­tions to the European Parliament and the subsequent appointment of a new Commission mitigate against a rapid con­clusion. This means it is also unclear what position the EU will adopt on the future design of the DCFTAs.

Neither side has an interest in retaining the outdated status quo. Solutions can be found for all the outlined differences – pro­­vided Tunis demonstrates the necessary political will and the EU offers judicious sup­­port. However, even a perfect trade agree­­­ment will not produce the desired positive economic effects unless it is sup­ported by the broader political, administrative and legal structures in Tunisia. Weak­nesses in governance and the business cli­mate re­main overarching challenges the EU needs to bear in mind in its negotiations with Tunisia.