CETA Forges Ahead in Canada As It Faces Legal Problems in Europe

The Comprehensive Economic and Trade Agreement (CETA) is having differing experiences lately. As it sails through the Canadian parliament, the agreement is facing problems in the European Court of Justice.

We wanted to check in on what is happening with one of the alphabet agreements, CETA. It seems that there is still some drama facing the agreement. First, we wanted to look at the status of the agreement in Canada. It appears that the Canadian parliament has passed the agreement in the implementation bill known as Bill C-30.

The agreement drew our attention because the agreement contained numerous provisions surrounding copyright. In our clause-by-clause analysis back in 2015, the agreement contained provisions that would allow site blocking, a three strikes law, and mandate border patrols to seize people’s cell phones at the border for the purpose of enforcing copyright laws on behalf of the software and entertainment industries. Last year, the agreement was signed. At that point, the only hope is that the affected countries simply won’t implement some of the worst provisions in the agreement.

CETA In Canada

Last November, Canada tabled Bill C-30, the CETA implementation bill. We examined the bill and, sure enough, the controversial provisions we focused on didn’t make it through. A relief for digital rights advocates in Canada to be sure. The most recent news is that the bill has been passed by the Canadian senate. From the report:

The Canadian Senate approved legislation last week for implementing the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union.

The move is one of the final stages before the two trading partners can begin the provisional application of the accord. On the EU side, the European Parliament also approved CETA in February this year, though full ratification will still require approval from national and regional legislatures.

We decided to take a look at the bill in it’s most recent stage ourselves to see if the story about the agreement has changed. After reading the bill, our analysis of the situation remains unchanged. While the controversial copyright provisions are still not there that we can tell, there is still the issue of ISDS (Inter-State Dispute Settlement) which the bill makes mention of:

Tribunals, Arbitration Panels and Panels of Experts

Powers of Minister

11 (1) The Minister may

(a) propose the names of individuals to serve as members of the tribunals established under Section F of Chapter Eight of the Agreement; and

(b) propose the names of individuals to be included in the sub-lists referred to in paragraph 1 of Article 29.‍8 of the Agreement.

Power of Minister of Finance

(2) The Minister of Finance may propose the names of individuals to be included in the sub-lists referred to in paragraph 3 of Article 13.‍20 of the Agreement.

Powers of Minister of Labour

(3) The Minister of Labour may propose the names of individuals to be included in the list established under paragraph 6 of Article 23.‍10 of the Agreement and propose, for inclusion in that list, the names of individuals to serve as the chairperson of a Panel of Experts established under that Article.

Powers of Minister of the Environment

(4) The Minister of the Environment may propose the names of individuals to be included in the list established under paragraph 6 of Article 24.‍15 of the Agreement and propose, for inclusion in that list, the names of individuals to serve as the chairperson of a Panel of Experts established under that Article.

Operation of Chapter Twenty-Nine

12 The Minister is to designate an agency, division or branch of the Government of Canada to facilitate the operation of Chapter Twenty-Nine of the Agreement.

So, while the controversial copyright laws are not in the implementation bill, the ISDS provisions could always facilitate overturning this. As long as a multi-national corporation can initiate the process, there will always be that threat. As a result, Canadians will still have to always be on guard.

While the concerns we follow seem to be alleviated, that doesn’t mean this agreement isn’t problematic for others. Earlier this month, Michael Geist notes that patent provisions would lead to hundreds of millions of dollars leaving the country in the pharmaceutical sector:

The Parliamentary Budget Officer released a report last week providing its estimate on the economic impact of the Canada – EU Trade Agreement. While the Liberal government made CETA its top trade priority when it came into office (and the Conservatives claimed that the deal would add $12 billion to the Canadian economy), the PBO report concludes that the economic benefits will be modest at best.

The report devotes a full chapter to CETA’s intellectual property provisions, particularly the patent related rules that will have a direct impact on the pharmaceutical industry. CETA establishes patent restoration and patent appeal rules that will extend the term of patent protection for pharmaceutical products, thereby increasing consumer prices and royalty outflows. With a regulatory framework designed to address pricing in place, the report focuses on increased royalty outflows with extended protection.

It concludes that the additional royalty outflows will run into the hundreds of millions of dollars. In 2015, the PBO estimates the increased royalty payments would have been $85 million. By the time the agreement is fully implemented, it pegs the annual royalty increase at $209 million.

Of note is that the report also rejects claims that increased patent protection leads to greater expenditures on research and development.

Also worth noting is that the Council of Canadians have expressed their own frustrations with CETA in a variety of sectors.

CETA In Europe

While the implementation process in Canada seems to be smooth sailing in Canada, the picture is less clear in Europe. According to the BBC, the court ruled that the European Union alone cannot arbitrarily pass the agreement. Instead, every member state must pass the agreement in their respective legislatures. From the report:

An EU-Singapore free trade deal cannot take effect fully unless parliaments in all 28 member states approve it, the EU’s top court has decided.

The legal opinion at the European Court of Justice (ECJ) could delay progress towards a UK free trade deal with the EU during the Brexit negotiations.

The European Commission negotiates trade deals on behalf of the EU.

The verdict makes it more likely that any UK-EU free trade deal will have to be ratified by national and regional parliaments in the EU.

The Singapore deal is not as wide-ranging as the EU-Canada trade deal (Ceta), which was nearly scuppered by objections in Wallonia, the mainly French-speaking part of Belgium.

Ceta will take effect provisionally in the coming weeks, but full implementation still requires the approval of 38 parliaments in the EU – national and regional.

The news was greeted with open arms by activists all over Europe. From DeSmog:

After a long enquiry into the Commission’s refusal to register the proposed European Citizens’ Initiative, the ECJ has found that “nothing justifies excluding from democratic debate legal acts seeking the withdrawal of a decision”, adding “the objective behind the European citizens’ initiatives is to improve the democratic functioning of the EU by granting every citizen a right to participate in democratic life.”

Following the ruling, the rapporteur for the European United Left and Nordic Green party, Helmut Scholz, said the judgement was a “strong signal for democracy in the EU and reinforcement of the broad public criticism of neoliberal free trade agreements.”

One of the members of the citizens’ committee Michael Elfer, told news site EU Observer that the court’s ruling was “a good day for European democracy”.

“The commission’s refusal to register our initiative was arbitrary and political. They were not willing to hear the voices of citizens opposing their neo-liberal projects called TTIP and CETA,” Elfer said.

So, CETA is by no means out of the woods yet. The agreement faces many legal hurdles before it can become law. Even in this late stage, there is still drama surrounding the agreement. We will continue to monitor the situation as things develop.

Drew Wilson on Twitter: @icecube85 and Google+.

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