Innovative aspects of CETA. Does CETA form an
effective model for government public
procurement?
University of Amsterdam, Track of International Trade and Investment
Law 2016-2017
Michalopoulou Aliki
Student Nr.10286284
Contents
Introduction
1. Public Procurement
2. Public Procurement in the European Union
3. The Government Procurement Agreement (GPA)
4. CETA
5. Procurement Commitments under CETA
6. CETA and Government Procurement Agreement
7. CETA’s Key point
8. CETA’s Impact
9. Conclusion
Introduction
The political and economic impact of government procurement is strong and more than evident on a country level, as a powerful financial tool towards societal goals. Government contracts on public procurement according to WTO account for 10-20 per cent of GDP.1It is
of no doubt that government purchasing influences the development of society and in the era of economic crisis, austerity and rapid political developments government entities aim to quality in purchasing. At the same time suppliers await and deem government
procurement contracts necessary due to the revenue flow created and the financial impact. The issue of making the procurement process less complicated and the boost of small and medium enterprises has been formed as the concern of many trade agreements and international entities, one of the main being the EU.
Canada and the EU signed the Comprehensive Economic and Trade Agreement in October 2016 and it still remains to be ratified by all 28 EU countries. CETA was adopted by Canada on 17 May and this was last step towards its entry into force after the ratification of all EU national and regional parliaments has been fulfilled.
CETA signifies the harmonization of international procurement rules between Canada and the EU, however it is important to underline its true value here, especially for the EU before proceeding to the deep analysis. It worth noting that Canada’s government public
procurement is anyway characterized by fairness, transparency and significant openness and gives the right to firms to submit their claim where they feel that they have been subject of discrimination or unfair treatment. Also Canadian companies with market movement in the EU are bound to be treated equally to European firms according to the EU procurement directives. CETA does not necessarily signify brand new capacity to Canadian firms to participate in the bidding process for public contracts in the EU, since they have already been able to do so. As such the main vision of EU negotiators of CETA has not been the win of non-discrimination access but ‘unconditional access’ in the Canadian market.2In this part
the EU has gained ground since Canada mainly made one-sided concessions to the EU which will have an impact on provincial and municipal level.
This paper’s aim is to evaluate CETA’s impact on public procurement, deep dive in its procurement framework analyze it and compare it to the respective procurement rules of WTO’s Revised Government Procurement Agreement (GPA)’s and the EU’s but this will be done in association to the further challenges and criticism that the agreement has met until its ratification. The core subject in this CETA assessment is government procurement as a significant field globally affected by the innovative agreement however we cannot but also stand to additional issues under CETA in order to view it as a whole. Through this overview the interest in government procurement prevails and the spherical observation of CETA at the end seeks to answer the following research question: Does CETA form an effective model for government public procurement?
As an introductive chapter the notion of public procurement with views on the openness of public procurement is presented, followed by the presentation of EU public procurement legislation background highlighted with the EU public procurement directives. The revised Government Procurement Agreement is described in separate chapter before going into more detailed view on CETA and the procurement agreements it introduces. CETA maintains
1 S. Sinclair et al. Making sense of CETA, An Analysis of the Final Text of the Canada-European Union
Comprehensive Economic and Trade Agreement, 2014, p. 24
major exceptions in favor of the governments’ rights to aim to societal goals and support small enterprises or economically weaker firms. At the same time it sets thresholds in order to guarantee that the core focus will remain on contracts granted to multinational entities. In spite of these limits what interests us to observe is CETA’s impact on international competition in protected government fields which introduces a new chapter of financial globalization. Following the overview and comparison of CETA, GOA and the EU
procurement rules we will devote chapters of this paper to more key points of CETA like Investor-state dispute settlement procedures (ISDS), exceptions under CETA, the MFN rule under CETA and its relation with GATS and GPA with views on Regional trade Agreements. The overview will proceed to an assessment of CETA’s impact in a separate chapter after the discussions of the previous points before closing with final thoughts on whether CETA can be identified as a role model in market access and government procurement.
1. Public Procurement
Public procurement covers a range of 13-15% of GDP in global markets. In the era of challenging economies the efforts of increasing transparency and competition of procurement are firmly kept a first line priority. There are preferences that shape and characterize the access of parties to procurement markets and these are divided in formal (de jure) and informal (de facto) ones.3 The de jure preferences translate into the strategy of
‘buy national’ according to which the suppliers have the flexibility of choice on the price while there are also de jure preferences applicable to smaller firms and businesses and are used by developed and developing countries who are subject to national treatment commitments, like in the GPA or FTAs.4
Public procurement markets are rather closed markets due to the tendency of governments to keep control over public contracts and avoid granting contracts to foreign companies. There are however even stronger barriers that affect public procurement markets such as discrimination which derives from the favorable options available to purchasing entities. This discretion is reflected in a wide range of rules which are necessary for the formation and effectiveness of public procurement. The most effective counterweight towards this approach is transparency as well as the standardization of award procedures. The necessity of opening procurement markets has strongly been underlined with European and
international agreements aiming to a stronger competition and less support towards local suppliers.
The World Trade Organizations’ (WTO) Agreement on Public Procurement (GPA) is the core international agreement related to public procurement. The European Commission is the body which represents the EU in the GPA negotiations (Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs).5
At this moment the GPA agreement counts 16 parties in total,(the EU, Canada, Iceland, Liechtenstein, Norway, Norway Armenia, Switzerland, Japan, Singapore, Hong Kong (China),
3 S. Woolcock, Study on Public Procurement in international trade, 2012, p. 8 4 Ibid, p. 8
Israel, South Korea, Montenegro, the Netherlands with respect to Aruba, Chinese Taipei, and the United States).6
The debate of which country is characterized more open in public procurement has been ongoing for years not only within WTO but also under the negotiation of preferential trade agreements. (PTAs) The EU has claimed to appear more open compared to its trading partners. Notably countries claiming to be more open than others often consider themselves entitled to “reciprocity” —meaning the “right” to better access to foreign public
procurement markets without providing new concessions.7
On EU level public procurement is part of almost 14% of GDP on the purchasing of services, supplies.8 The EU has established minimum harmonized rules on procurement in order to
manage the way that public entities purchase goods and services. These rules are integrated into national legal systems and are applicable to tenders of higher economic value than a specific amount whereas lower value tenders are subject to national rules. However, these national rules must be aligned to the general principles of the EU law.9
2. Public Procurement in the European Union
2.1 Public procurement in recent EU trade policy
Public procurement is not a new priority to the EU’s external trade policy as the objective of opening the EU Market has been a main purpose, always in the context of keeping the stability and harmonization between the international trade rules and the global economic development. First steps towards the liberalization of the European market were made with the reduction of tariffs; however local preferences in public procurement markets formed a firm and present barrier. As a result at the multilateral level the EU pushed for public procurement to be integrated in what came to be established as the Doha Development Agenda (DDA). During the first WTO Ministerial meeting in Singapore in 1996, the EU
successfully managed to include public procurement together with competition, investment, and trade facilitation in the WTO’s work program as what became known as the Singapore issues.10
The EU’s attempt to take public procurement discussions to the next level did not come without opposition. Other WTO members and in specific developing countries stood against this inclusion. The renegotiation of EU trade policy with the Global Europe strategy took this gap in multilateral discussions into consideration and the EU turned into new negotiations of
6 Ibid
7 P.Messerlin, How open are public procurement markets?,2015/89, p. 1 8 Supra, note 3,p. 8
9 European Commission ,Public Procurement [online]
10International Centre for Trade and Sustainable Development, Sustainable Developments Daily
Free Trade Agreements (FTAs).The Global Europe policy did not support protectionism, but stressed that it must be ‘accompanied by activism in creating open markets and fair conditions’ in export markets.11This had two elements, ’a stronger engagement with major
emerging economies and regions and sharper focus on barriers to trade behind the border”.
12 As such the ground for opening the procurement markets was set as “areas of significant
untapped potential for EU exporters”13
The Global Europe Statement did not omit to note that the opening of foreign public procurement markets would not be easy to achieve which why the ‘ challenge to find a way of opening up major foreign procurement markets without closing our own’14 is still present.
In the 2006 text it was declared that the Commission would ‘propose measures to open procurement markets abroad... in the months ahead.’15
2.2 The EU legislation on international procurement
The efforts to open up government procurement markets have been led by the idea of economic development, especially when we are talking about big size markets. According to the European Commission Public procurement accounts for 15-20% of global GDP and GPA commitments alone represent around EUR 1.3 trillion in business opportunities worldwide.16
The EU rules on public procurement for the purpose implementing the internal market policy guidelines have two main pillars:
The Treaty on the Functioning of the European Union (TFEU) The procurement directives
The TFEU sets rules that ban discrimination between Member States and are applicable to all public procurement measures and contracts. Even though applicable in every Member State without measure implementation these TFEU rules were considered inadequate for the opening of procurement markets. Specifically, it was deemed important and mandatory for contracts to be awarded with transparency so that ‘authorities awarding public contracts could not disguise any discriminatory behavior under a cloak of discretion.’17In addition,
11Commission of the European Communities, Commission staff working document, Global Europe:
Competing in the world. A contribution to the EU's Growth and Jobs’ Strategy. 2006/567,p. 7
12 Ibid, p. 8 13 Ibid, p. 9 14 Ibid, p. 10 15 Ibid, p. 15 16 Supra, note 3,p. 8
specific provisions were necessary to make sure that the rules could be efficiently applied to tenders.
This brings us to the procurement directives adopted by the EU for the regulation of award procedures for instance, that member states should promote and award their contracts merely by commercial criteria. The first EU public procurement directive dates back to July 1971 and covered public works contracts. Later in 1976 and in 1992 supply and service contracts were added in separate directives, while a 1990 directive covering entities
operating in the water, energy, transport and telecommunications sectors. In April 2004, two public procurement directives came into force, together known as the Old Directives:
“The Directive 2004/18 (the ‘2004 Public Sector Directive’)”18
“The Directive 2004/17 (the ‘2004 Utilities Directive’).”19
‘In April 2014 three new procurement directives were adopted by the Council of the European Union and the European Parliament and must be implemented into EU Member States’ national law by April 2016 and are known as the “New Directives”:
“The Directive on public procurement (2014/24) (the “2014 Classic Directive”), which repeals the 2004 Public Sector Directive”20
“The Directive on procurement by entities operating in the water, energy, transport and postal services sectors (2014/25) (the “2014 Utilities Directive”), which repeals the 2004 Utilities Directive”21
“The Directive on the award of concession contracts (2014/23) (the “2014 Concessions Directive”), which sets out new rules for concession contracts.”22
It is expected that the New Directives will bring flexibility to the EU procurement sphere and eventually improve the access to EU procurement. The result is a very substantial set of new rules, which introduce changes and further details throughout the award process. The New Directives set out the rules on the award of contracts but do not provide a complete public procurement law or code for all levels of procurement. Member States have some scope for policy choices in national implementing legislation. There are certain unclarities, and the Court of Justice of the EU (“CJEU”) frequently judges on procurement issues with binding character for the EU Member States.23
3. The Government Procurement Agreement ( GPA)
18 European Commission ,EU public procurement directives [online] 19 Ibid
20 Ibid 21 Ibid 22 Ibid
First negotiations of the GPA were made in 1979 and referred to only central government procurement in goods. Following the first step there was an attempt to include sub central government and other entities like utilities. The rules on transparency and contract award procedure have been developed and bid-challenge provisions were added in 1994.24
The EU has prompted other countries to participate to the GPA and has been an important supporter during the last review of the agreement. On 15 December 2011 the GPA
signatories reached an Agreement on an updated set of tender rules and additional market access commitments with the scope of rendering the Agreement more appealing to non-Parties by offering simpler rules.25
‘The GPA covers trade in the domain of public procurement worth 500 billion Euros globally annually. According to WTO estimates, the revision of the GPA will bring extra procurement opportunities worth around 100 billion Euros.’26
The main gains of the negotiation are listed below:
•”More transparent rules for international public procurement” •”New market access opportunities”
•”Accessions and benefits for developing countries” •”Future work”27
4.
CETA
4.1 The CETA and Government procurement in Canada and the EU
The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU) is a trade-liberalizing agreement and one of the key trade and investment agreements Canada has entered into since NAFTA in 1994(North Atlantic Free Trade Agreement) and its accession to WTO in 1995 (World Trade Organization. In 2016 the EU was the recipient of an estimation of $39.8 billion of merchandise exports, which established the European market as the second major export markets28.In July 2016 the
European Commission proposed the signature of CETA. The agreement was approved by the Council in October 2016 and the European Parliament voted in favor of it on 15 February 2017.29 CETA will open progressive paths since it will be the first time that all sub-federal
24 Supra, note 3, p. 14
25 European Commission ,WTO Agreement on Government Procurement ("GPA"),p. 1[online] 26 Ibid, p. 2
27 Ibid
28 J. Fréchette, The Canada-EU Comprehensive Economic Trade Agreement ,A prospective Analysis, 2017, p. 1 [online]
levels of government in Canada have engaged themselves to bilaterally open their procurement markets.30An EU-Canada Joint Study (2008) found that the general value of
contracts awarded by the federal government was estimated at C$ 15 to 19 billion per year. The value of contracts at other levels of government is considered to largely exceed these numbers.31
EU had every reason to pursue negotiations of government procurement under CETA and set new standards in the economic relations with Canada. Canadian provinces, regions and municipalities were looking towards an open market where the EU companies would meet the opportunity to freely bid for procurement contracts without “local development criteria” for the protection of local suppliers being applied. The air of a liberal market would prevent governments of applying local rules and fostering protectionism.32
CETA came to provide room for development of the Canadian markets and allow both European and Canadian businesses to access equal opportunities to supply goods and services. It set a high-value threshold under which governments can still support small and medium sized enterprises. The value is much higher than the $25,000 value under the Agreement on Internal Trade, and instead compares with the values we meet under the WTO Agreement on Government Procurement. 33The integrated exceptions reflect the ones met
under other agreements and ‘offer alternative grounds for local protection (particularly for Canada, since it allows Canadian regional economic development as a basis for an exception whereas a similar exception is not provided for EU countries).’34
CETA’s procurement chapter will for the first time call governments to commit to opening their procurement markets specifically on sub-federal level. The inclusion of municipal and sub central governments is what makes the difference especially when taking into account the broad powers the Canadian provinces hold under the respective federal system. In time CETA’s procurement rules aim to the improved quality of public services at lower prices and push local governments to turn more towards innovation, sustainability and better contract management.
4.2 CETA’S Government Procurement Chapter
4.2.1 Non-Discrimination
The first key principle covered by CETA’s government procurement chapter is non-discrimination. Article IV sets the general non-discrimination provision under CETA and allows Canadian procuring entities and EU suppliers to equally access Canada’s procurement market. In specific underlines that: ‘With respect to any measure regarding covered
procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favorable than the treatment the Party, including its procuring entities, accords to its own goods, services and
suppliers’.35Under the same article it is notable to underline that the non-discrimination
commitment is shifted to the suppliers of goods and services in specific with the
30 Ibid
31 D. Collins, Globalized Localism: Canada’s Government Procurement Commitments under CETA, 2016, p. 1
32 R. Dattu et.al, Analysis of the Canada-EU Comprehensive Economic and Trade Agreement: A Call for
Revising Strategic Business Plans, 2017,Ch.2 [online]
33 Ibid 34 Ibid
acknowledgment that the identical treatment of goods alone is not enough to eliminate the barrier of discrimination between suppliers. As respectively stated under Article IV
,provision 2: “With respect to any measure regarding covered procurement, a Party,
including its procuring entities, shall not:(a) treat a locally established supplier less favorably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.”36 The provisions of Article IV help monitor possible barriers to foreign
investments and as such will allow EU entities to easier operate in the Canadian territory covered by the assurance that they will not come up against the wall of discrimination being of non-Canadian origin.
4.2.2 Transparency
Like most international agreements CETA’s procurement chapter does not omit to place the procurement procedures under the umbrella of the transparency principle and as such support the non-discrimination obligations stated in provision 1 of Article IV. Government and procuring entities are committed to publicizing specific information. This information includes laws and policies, trade documentation on procurement transactions, award information to participating suppliers and information on the investigation of certain procurement procedures to assure that procurement was fulfilled in compliance with CETA rules.37 Additionally based on CETA’s rules on transparency and electronic tendering both
Canadian and EU entities will gain access to a single electronic procurement website which includes information on tenders and as such this results to the strengthening of competition between the countries. As stated under Article IV, provision 3: ‘When conducting covered procurement by electronic means, a procuring entity shall:(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and(b)
maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate
access.’38In Article XV we also meet transparency commitments towards procuring entities
which must properly inform suppliers of their decisions as well as of the reasoning behind the successful bidder choice.
4.2.3 Impartiality
CETA’s procurement chapter furthermore advocates impartiality during the procurement procedure and sets rules which aim to create a fair and equal process. These include the conditions for participation of suppliers judged by the legal and financial background as well as the commercial and technical competences as stated under Article VII, provision 1:’ A procuring entity shall limit any conditions for participation in procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.’39Additionally the
qualification procedure of suppliers based on the registration system, selective tendering
35 European Commission ,Canada-EU Comprehensive Economic and Trade Agreement(CETA), Ch. XIX Art.19.4 .1 [online]
36 Ibid 37 Ibid 38 Ibid 39 Ibid
and multi-use lists is ruled under Article VIII while Article IX sets the background for technical specification and tender documentation with a highlighted importance on descriptive characteristics: ‘In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, if appropriate:(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics’40 The listing on clear negotiation rules under Article XI secures
the clear evaluation criteria at the instance of the elimination of a supplier from participating to these negotiations while the procedures for treatment of tenders and awarding of contracts set under Article XIV come to guarantee enhance the principles of fairness and impartiality as well as the assurance of confidentiality of tenders along the procurement process.41
Under a general picture the General Procurement Chapter of CETA regulates the acquisition of goods and services to be used or benefit the government directly. The CETA procurement provisions apply after an entity has met its requirements and proceeds towards the contract award while the contracts in question are linked to purchase, lease, rental or hire
purchase.42As such to be able to judge on whether the provisions apply it is crucial to
determine the nature of the government entity involved as well as whether the goods and services in question are indeed being procured.43
The above presented procedural commitments under the CETA procurement chapter are the key towards the elimination of discrimination against foreign suppliers and eventually enhance the competition between them. The goal of opening the procurement market and its processes is to be accomplished through fairness, equality, anti-corruption approach and information availability in regards to procurement activities. The call on the gathering and distribution of huge amount of data and relevant information creates a certain
administrative burden which can easily slow the procurement procedure down. Under CETA this responsibility seems to be shifted from the private to the public sector and opens up resources to stronger productivity. While the CETA will possibly boost competition for international firms it might as well increase compliance costs for governments and challenge those with limited sub-central resources as well as municipal ones.44
5. Procurement Commitments under CETA
5.1 CETA and EU directives
The procurement commitments entered into by Canada under CETA are broad and will impose restrictions to provincial and municipal government entities in regards to using public spending towards various societal goals. All municipal government procurement is for the first time ruled by an international agreement. CETA’s procurement chapter lists the exact categories of procurement contracts referring to both central and sub-central entities. The principal restriction on the government’s commitment is the one referring to its monetary minimum threshold in SDRs.
From the EU’s point of view, EU public authorities will have to award the contract to the tender who submitted the highest scoring bid in the scale of qualifications and prerequisites. If a bid follows the EU standards the government entity is not allowed to discriminate against
40 Ibid 41 Ibid
42 W.D. Hart ,CETA: the Government Procurement (GP) Chapter, 2015 [online] 43 Ibid
the Canadian bidder due to nationality and as stated above should the Canadian firm consider it has been subject of unfair treatment can proceed to submitting a claim.
The government-procurement chapter of CETA refers to contracts above a specific threshold and as such competitions below this threshold as stated under CETA not bound to take bids from Canadian firms into consideration. Likewise competitions under the Canadian
government are open to EU firms when the contract is above the stated threshold. The same rule applies to competitions for Canadian government contracts; they are open to EU companies only when the contract value is above a specified threshold. Exclusions include ports and airports, broadcasting, postal sector and Shipbuilding and maintenance by certain bodies.
Canada and the EU hold to the right of showing preference to local firms when providing loans or tax motives. Public entities may also favor domestic firms when the contracts in question are below the threshold stated in CETA while Canada and the EU might also set technical or environmental standards. A procurement procedure can be preferred by public authorities and the deadlines can be restricted based on specific conditions like being posted on TED45 for the minimum of 40 days. Specific contracts can be excluded depending on which
category they fall under national security; maintaining order and safety; human, animal and plant health; intellectual property; persons with disabilities; philanthropic institutions; prison labor; and Aboriginal businesses.46
We see similar threshold levels between CETA and the EU Directives meaning that same access is granted to Canadian and EU firms to sectors ruled under CETA. The exception concerns ’ sub-central authorities with a threshold of 355,000 SDR’ (currently equal to approximately €443,000 or $686,000)’.47
Canada’s procurement commitments differentiate between GPA and CETΑ in terms of threshold setting since the thresholds set under CETA are lower for specific procurement types in sub-central level by being set in the minimum value of 200.000 SDRs for goods and services, notably lower than what is ruled by the GPA. We meet the same threshold of 500.000 SDRs in construction while provincial procurement related to crown corporations (state-owned enterprises owned by the Sovereign of Canada) appears under a higher threshold of 355.000 SDRs.
5.2 CETA and GPA
The flexibility provided to government entities to show preference to domestic firms in smaller scale contracts, mirrors the intention of CETA to rule on public contracts of larger impact. As a trend also seen under GPA, CETA procurement provisions apply to contracts of big value and signify the agreement’s interest in bigger international firms while on the same time they contradict the view that CETA imposes restrictions on governments’ power to set procurement processes in favor of domestic suppliers. As such governments maintain their capacity to turn procurement into a tool of public development and support small and medium sized firms.
As in GPA, CETA gives the definition of an offsets as follows: ‘An offset means any condition or undertaking that encourages local development or improves a Party's payment balance-of-payments accounts, such as the use of domestic content, the licensing of technology,
45 Tenders electronic daily [online]
46Global affairs Canada, European Government procurement guide for Canadian businesses, 2017,Ch.2
investment, counter-trade and similar action or requirement.’48 By implementing this
prohibition CETA echoes other Canada trade agreements like NAFTA. The reasoning behind these prohibitions’ enforcement is the intension to underline the inadequacy of offsets as performance requirements which can lead to economic loss for governments and unbalance in trade and investment. These consequences in the context of supporting non-competitive suppliers may likely appear to be economically disastrous in the long term.
CETA significantly expands its coverage to mass transit services. For Canada GPA”does not apply to procurements in respect of: urban rail and urban transportation equipment, systems, components and materials incorporated therein as well as all project related materials of iron or steel.”49While the mass transit is clearly excluded under GPA, CETA bans
the promotion of domestic prerequisites for transit procurement in provincial level with two exceptions though, Ontario and Quebec under Annex X-04. The importance of the Ontario and Québec provisions is losing in intensity mainly under the scope of ‘total value’ of the contracts and thus maintenance and other non-manufacturing actions.50“The ‘ratchet effect’
noted under CETA makes sure that domestic content rules can only move towards one side in the future: down”51
Even though Ontario and Quebec are stated as exceptions, CETA manages to put certain restrictions to the procurement processes enforcement by dropping the mass transit content requirements from 60 to 25 per cent in some instances.52Since local procurement rules have
been frequently used for top rated manufacturing businesses like for Bombardier, the Canadian leading manufacturer of both planes and trains, it is worth noting that the current CETA procurement provisions move away from these policies, limits the scope of
procurement activities for local governments and brings skepticism to important Canadian industry sectors.
6. CETA and the Government Procurement Agreement ( GPA)
It is important to stronger highlight at this point the parallelism between CETA’s government procurement agreement and the Revised Government Procurement Agreement (April 2014). The Government Procurement Agreement’s text has been updated and restructured to include, for instance, standards for electronic procurement tools whereas further
amendments include provisions for avoiding corruption practices.53As WTO Director-General
Roberto Azevêdo had noted: ”The revised WTO Agreement on Government Procurement will open markets and promote good governance in the participating Member economies. The fact this has been achieved so quickly shows the importance that the Parties attach to the GPA and is further evidence, after the successful Bali Package that the WTO is back in business. The modernized text of t he revised GPA and the expanded market access
commitments should prompt other WTO Members to consider the potential advantages of joining.”54The Revised Government Procurement Agreement additionally sets new measures
in order to allow developing and least developed countries accede to it. The revised
48 Ibid
49WTO, Appendices and Annexes to the GPA, Appendix I, General Notes, Art. 1,b [online] 50Supra, note 1, p. 30
51 Ibid 52 Ibid, p. 33
53 WTO, Revised WTO Agreement on Government Procurement enters into force, 2014 [online] 54 Ibid
government procurement agreement has so far been signed by 43 countries, the EU and Canada included, whereas other members of WTO are bound to accede in the future committed to accede to the agreement in the future (Russian federation, Saudi Arabia) or currently have observer status (China). The Government Procurement Agreement guarantees non-discrimination towards goods and services and mandates transparency and enhanced competition among markets .As a plurilateral Agreement the GPA applies to the members which have already agreed to be bound by it.
As under CETA’s procurement chapter, the WTO GPA includes annexes issued by each signatory parts which clarify the fields of procurement activity (branch of government, type of good or service) to which the commitments stated under the main agreement apply.55
Annexes 1-3 of that Appendix indicate the central and sub-central government entities in addition to other entities like public utilities to which all committed Parties must comply. The Appendix I of each Party’s Annexes furthermore state the minimum threshold values above which procurement is covered by the Agreement.56As a general rule, all goods are covered by
the GPA, while Annexes 4 and 5 to Appendix I identify each Party's covered services and construction services.57In Appendix I we also find Notes and General Notes qualifying the
coverage accorded under the Agreement.58
As analyzed in previous chapter CETA sets the rules on impartiality between bidders and clearly aims to the elimination of facts or information released that would prejudice competition and affect the fairness of the procurement process. This line is followed under the Revised GPA and NAFTA59as well , which mainly translates into the right of firms to stand
before independent tribunals formed by the Canadian government where possible challenges or differences can be thoroughly assessed before providing the respective information to the tenders. The Canadian International Trade Tribunal has filled this juridical gap already by operating within Canada’s trade remedy system with the application of laws related to facing unfair competition in the domestic market or providing emergency protection against imported items that are likely to damage the domestic industry.60The
Tribunal is assigned with the hearing of appeals from decisions of the Canada Revenue Agency (CRA) and the Canada Border Services Agency (CBSA) but has also been chosen as the bid challenge authority under the Canadian Free Trade Agreement( CFTA), NAFTA, the AGP, the Canada–Chile Free Trade Agreement (CCFTA), the Canada–Peru Free Trade Agreement (CPFTA).61
It is of further interest to have a closer look at Article XVII.7 b) of CETA (mirrors XVIII.7 b) of the GPA) regarding domestic review procedures (the equivalent to XVIII.7 b) of the GPA) where we meet a provision which rules the possibility of a breach of the agreement and subsequently the cause of damages for the EU or Canada in case a displeased supplier decides to challenge the procedure due to non-fulfillment of CETA obligations. In this occasion: “Each Party shall adopt or maintain procedures that provide for: corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both, if a review body determines that there has been a breach or a failure as referred to in paragraph 1.”62
55 Supra, note 33, p. 4 56 Supra, note 51
57 Ibid, Annexes 4,5, Appendix I 58 Ibid, Appendix I
59 Foreign Trade Information System ,The North American Free Trade Agreement(NAFTA), Ch. 10, Art.1017 [online]
60 J. M. Flaherty, Canadian International Trade Tribunal, Reports on plans and authorities, 2013-14, p. 13 [online]
61 Ibid
Furthermore the parties should during the procurement challenge be able to adopt ‘rapid interim measures to preserve the supplier's opportunity to participate in the procurement’ while these measures may result in suspension of the procurement process. These processes ‘may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied.’63A supplier can chase the fulfillment of his rights by challenging the bid
procedure and refer directly to government entities of either the EU or Canada until clear reasoning on the disruption of the procurement process is provided.
7. CETA’s key points
7.1 CETA across GPA-GATS
CETA’s objective is to reduce the barriers apart from trade in goods also from trade in services and the core intention is to develop the EU and Canada’s already existing
commitments under WTO and the GATS and as marked by P. Leblond: “GATS At this point it is advisable to make a step closer to the Canada’s procurement in services as defined under GPA.”64The bilateral and international trade agreements to which Canada participates to
refer to Canada’s actions that have an impact on trade in services, including measures adopted on provincial level. Nevertheless, these agreements enclose various exceptions in relations to municipalities, like for instance the GATS excludes ‘services supplied in the exercise of governmental authority’65as well as those services procured by governments and
their agencies.66In addition, Canada refrains from commitments under GATS commitments
that relate to services like health, public education and other social services. This indicates that Canada’s commitments under GATS are neither applicable to various services supplies on local level nor to services procured by local authorities.67
Coming to the GPA should be noted that as far as the procurement in services is concerned the access to procurement markets is with regard to the coverage of procurement in services and construction services is controlled by the GPA’s, “relationship of correspondence to the GATS schedules and, as a result, by the purpose of the MFN principle under the GATS.”68This
occurs due to the fact that in spite of the exclusion of government procurement from the GATS provisions, the GPA focuses merely on government procurement procedures and “cannot rule measures like trade restrictions that influence the capacity of foreign firms to sell services to governments.”69
This differentiation results to the situation, where the parties of the GPA lack the authorization of opening their procurement markets for services towards government
63 Ibid
64 P.Leblond, The Canada-EU Comprehensive and Economic Trade Agreement: More to it than meets
the eye,2010 [online]
65 GATS, Article I, 3
66 WTO, The General Agreement on Trade in Services (GATS): objectives, coverage and disciplines [online]
67 Supra, note 48, Ch.11
68 D. Kamala, The government procurement agreement, the most-favored-nation principle, and regional trade agreements [online]
69 R.D. Anderson et.al, The relationship between services, trade and procurement commitments:
procurement purposes in larger extend than what the GATS schedules obligations mandate. This may as well stimulate the necessity to recourse to RTAs (Regional Trade Agreements) as a second option which will allow the negotiations of commitments that go further than what GPA offers.70 This covers GPA parties who are looking for expanded procurement market
access of other GPA or non-GPA party.
Under GPA we observe a striking lack of a general legal provision which will allow exceptions to the MFN principle. This brings it opposite the GATT, pursuant to Article XXIV, and pursuant to Article V GATS and opens up a debate as it is likely for the RTAs signed by GPA parties that open up procurement markets for goods and services, or beyond the GPA obligations and schedules.
These restricting legal obligations and their negotiating line are standing opposite the broader WTO and GPA objectives. A preferred turn would be the WTO members not to support market liberalization derived from firm reciprocity and the MFN rule. This would likely not allow further use of government procurement commitments to shelter specific local producer interests, instead of aiming for a free trading sphere.
Based on the relationship of correspondence between the GPA and the GATS it is notable to underline that even though government procurement is officially not covered by the GATS, the MFN principle still provides access to markets for services for government procurement purposes under the GPA. The legal link between the schedule of parties to either GPA or GATS could partially answer why RTA market access obligations in government procurement are usually broader that the respective GPA commitments under the GPA.71 However this
remark is difficult to analyze due to the challenging comparison of the coverage of
procurement by designated entities of goods and services. Thus the observation of the GPA’s parties’ commitments in goods, services and construction services with reference to their commitments in RTA’s is wiser here to approach.
There is an obscure point between the GPA parties’ commitments and those in their RTA’s contrasting GATT Article XXIV and GATS. Under GATT Article XXIV exceptions to the MFN Article I.1 basic rule should occur under explicit conditions regarding trade. ‘Those
exceptions are narrowed by a) unspecified preferential arrangements b) customs unions or free trade areas and c) products originating in developing countries.’72 Concerning GATS the
rules regarding services were of bilateral character prior to the Uruguay Round and most countries needed a period to transit to the agreements made.73 For almost a decade
countries settled on renegotiation and reductions of tariffs in order to comply with the MFN rule while until this point every country had to present already existing exemptions they wanted to exempt from the MFN rule like for instance countries needed to open up to agreements that approved preferential treatment.74
There is not a provision of a solid exception of parties from the GPA’s MFN obligation under specified circumstances in article V of the Agreement. According to the GATT and the GATS negotiated preferential access is basically deriving from the description of customs unions and the exclusion of barriers to trade. Nevertheless comparing both agreements showed that the GATS provides the grounds for negotiated preferential access agreements more
70 Supra, note 70
71 D. Kamala et.al The Internationalization of Government Procurement Regulation, Ch. 4.4.1 ,p.123 72 Ibid, p. 124
73 Ibid, p. 124 74 Ibid, p. 124
substantially than the GATT Article XXIV. As agreed under Article VII the GATS provides a form of MFN with reciprocity and with mutual recognition and thus countries can operate
towards each other on bilateral level so as to award advantages over countries that are not covered by the same recognition.75 This line drawn under the GATS would mirror the
approach of strict reciprocity of GPA negotiations but even so this clause was not included under the GPA texts. Thus it would be deemed rational that with excluding of a similar exemption from the GPA’s MFN rule for RTAs any GPA+ procurement obligations in RTAs is violating the MFN provision the GPA Article IV which rules that: “With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party offering the goods or services of any Party, treatment no less favorable than the treatment the Party, including its procuring entities, accords to a)
domestic goods, services and suppliers; and b) goods, services and suppliers of any other Party.”76
From the above mentioned relationship of correspondence between the GATS schedules and the negotiated access to services markets under the GPA is that any dynamic possible to emerge from the GPA regulatory framework can be deemed to apply to the procurement for goods as well. This is due to the fact that there is no strict separation between the
procurement of services and goods pursuant to article II.2 (a). In other words if access to a particular procurement market cannot be opened because it is de jure constrained by the lesser access in its corresponding GATS services commitments the goods attached to this procurement market will de facto also be restricted if they cannot be unbundled from the services part of the particular procurement in question.
The services chapters of CETA in this case with eyes on the market liberalization form a negotiated part of the agreement which of severe and unique importance in the history of agreement between the EU and Canada.
The result is notably echoing WTO/GATS and NAFTA+. In contrast to the GATS and its focal point on four separate types of services, CETA (as NAFTA) sets two key market access types: ‘cross-border supply and investment’.77
7.2 Exceptions under CETA
There are general rules of exception under CETA presented in following groups: a) in the chapter of general definitions and initial provisions78 b) in the general chapter of Exceptions79
and c) in the chapter devoted to Investments.80 The Definitions chapter describes a free
trade area which it confirms to be compatible with GATT Article XXIV81 and moreover
confirms ‘the “Parties’” rights and obligations with respect to each other under the WTO Agreement and other agreements to which they are party’.82Under the Exceptions Chapter
75 Ibid, p. 124 76 GPA Article IV
77 S. Woolcock, EU-Canada Comprehensive Economic and Trade Agreement (CETA),Workshop,2015, Ch.1.2, p. 8
78 Supra, note 37, Ch. I, Art. 1.5 79 Ibid, Ch. XXVIII
80 Ibid, Ch. VIII
81 A.de Mestral, When Does the Exception Become the Rule? Conserving Regulatory Space under
CETA,2015, p. 5
XXVIII Article 3, parts of the CETA referring to goods and investments ‘...GATT 1994 Article XX is incorporated into and made part of this Agreement.’ 83This integration is most likely
incorporating the chapeau to Article XX. In the same we also read that: ‘the Parties
understand that the measures referred to in GATT 1994 Article XX (b) include environmental measures necessary to protect human, animal or plant life or health’.84
The Parties additionally recognize that ‘GATT 1994 Article XX (g) refers to measures for the protection of natural resources.’85In regards to services, the condition is yet more
complicated. Chapter XXVIII Article 3.2 of CETA declares that a party can adopt measures towards the following goals: ‘a) to protect public security or public morals or to maintain public order b) to protect human, animal, or plant life, or health c) to secure compliance with laws or regulations which are not inconsistent with the provisions of this chapter including those relating to:(a) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;(b) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality10of individual records and accounts; and(c) safety.’86
Whereas the above provision is not conditional on the GATT Article XX chapeau, it is followed by the statement that:”the public security and public order exceptions may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.”87The exceptions under observation are an extensive part of CETA and clearly
adopt a significant part of WTO that deals with exceptions.
The CETA Exceptions chapter also provides temporary safeguard measures with regard to capital movements and payments and other measures aiming to the protection of national security. Pursuant Article 7 parties can adopt taxation measures and in case the scope of the taxation exception is questioned the parties may “refer the matter for consultation and joint determination that the measure in question is in fact a tax measure subject to the
exception.”88
Canada has adopted the EU outline of trade agreements and follows the same lines towards greater societal goals as reflected in Chapter XXII( Trade and Sustainable Development), Chapter XXIII ( Trade and Labor) and Chapter XXIV ( Trade and Environment) and transparent regulation as reflected in Chapter XXI (Regulatory Cooperation) and XXVII(Transparency). The purpose of these provisions seems to be an effective bilateral cooperation in trade regulation while allowing governments to regulate in favor of the public interest.89This is achieved
through exceptions instead of a legislative process as seen under the EU treaties and this approach is being followed pursuant the FTA model.90The FTA model is stricter then customs
unions. It is more difficult to accept a supranational decision-making and changes with approval of the parties are necessary. Citizens’ rights under FTAs have rarely been seen but can happen. The addition in NAFTA Chapter 11 in 1994 of investor-state provisions in investment chapters can for instance be recalled. Therefore, citizens’ rights may be included in slow pace in regional trade agreements. ‘CETA clearly rules out granting rights to private
83 Ibid, Ch. XXVIII, Art. 3.1 84 Ibid
85 Ibid
86 Ibid, Ch. XXVIII, Art. 3.2
87 Ibid, Ch. XXVIII, Art. 3.2,note 33 88 Ibid, Ch. XXVII, Art. 7.7
89 Supra, note 81, p. 13 90 Ibid
parties, as also seen in NAFTA.’91This is naturally a stricter and less fitting approach to
international trade regulation than that which can be seen within customs unions. Yet this approach is in most trade agreements followed by governments and appears to remain a pattern. The EU has pursued the best possible regulatory cooperation in CETA which is certainly a positive aspect, however cannot influence the rigidity of the FTA model and as such as long as FTAs are the main way towards the liberalization of trade outside of the WTO, exceptions will be deemed necessary.92
7.3 CETA and Investor state dispute settlement
Upon CETA’s ratification the provisions on protection of investment and investor state dispute settlement will be replacing bilateral investment treaties between the EU and Canada and is the first of many to be negotiated FTAs. Its investment protection provisions give a clear answer to critics and skepticisms that have targeted its ISDS system.
An observation of some of the CETA’s key points shows the solid ground provided for dealing with existing and potential criticism. CETA confronts the claim that ISDS lacks transparency by implementing the UNCITRAL Transparency Rules that provide for:
“public hearings”
“online access to submissions and arbitral decisions”
“Access for interested parties, such as NGOs and trade unions, who may seek leave to file amicus curiae submissions.”93
CETA concentrate on the matter of ‘treaty shopping’ with provisions intended to not support “the circumvention of jurisdictional conditions through ‘mailbox’ subsidiaries”.94
Investors frequently seek for the best possible protection and build investments via corporations in countries that are benefited from profitable BITs with the host state .These corporate mediators might as well be ‘shells’ without specific business activity like for instance investors prefer a corporate intermediary in the Netherlands to benefit from the 90-plus investor-friendly BITS to which the country is a party.95
Under CETA it is made clear that a main objective it of its scope is to abandon this pattern .In specific under CETA “an enterprise must conduct ‘substantial business activities in the territory in which to which it is a party”96 in order to be named investor. This leads to the fact
that merely corporation with valid businesses in the country in which they are established are entitled to submit their claims under the ISDS provisions of CETA.
BITs in general require that the investment of a party submitting a claim is subject to the treaty’ investment definition before the claim is brought under arbitration. These definitions of investment have been frequently characterized as being extensive and included ‘any kind
91 E. Petersmann, Citizens and Transatlantic Free Trade Agreements: How to reconcile American
‘Constitutional nationalism’ with European ‘Multilevel Constitutionalism’ 2016/17, p. 14
92 Supra, note 83, p. 14
93 European Commission, CETA explained [online] 94 N. Fullbright, CETA's watershed moment, 2015 [online] 95 Ibid
of asset’ and tribunals has come as far as to verify if the assets in question within the host state fall under the specific categories declared by the treaty.97 CETA restricts the range of
investments entitled to protection and following international jurisprudence developments it integrates in its language what is known as the ‘objective’ investment definition according to which the activities of the claimant in the host state follow specific criteria characteristics, which include: certain duration, the commitment of capital or other resources, the expectation of gain or profit and the assumption of risk.98
The MFN clause under CETA is one more reference to treaty shopping, in specific the ability of the claimant to use the MFN clause in order to be protected by more beneficial provisions of other BITs. CETA’s language narrows the definition of ‘treatment’: “Treatment does not procedures for the resolution of investment disputes between investors and states provided for in other international investment treaties and other trade agreements. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute "treatment", and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party pursuant to those obligations.”99As such
the CETA MFN clause offers here a clarity that has caused division between arbitral tribunals. Under CETA, there can be indirect expropriation where measures are “designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment” with the exception that “in the rare circumstances where the impact of the measure or series of measures is so severe in light of its purpose that it appears manifestly excessive”.100At this
point one of the most common criticisms towards the ISDS system is reflected which stress that the outcome here is a ‘regulatory chill’ that keeps the host states from regulating in favor of the public interest.101 CETA is the first international investment agreement where we
see the attempt to describe what conditions form the breach of a FET. The CETA parties mainly sought to harmonize the interpretation of FET and restrict the notion of ‘unwelcome discretion’ of arbitrators as outlined by the European Commission.102
Whereas under CETA it is harder for foreign investors successfully submit claims against host states it still brings significant safety for their investments and strike an effective compromise between defenders and critics of ISDS.
8. The Impact of CETA
As already analyzed above, the procurement core of CETA is moving under the GPA lines, urging for extended opening of procurement markets and limitations on preferential treatment of domestic businesses. In the EU, the procurement market is opened up across the public sector in fields not bound by GPA commitments whilst the Canadian provinces and territories are included.
Counting 70 years of efforts to expand and liberalize the economy on global level procurement markets are still characterized by certain localization and have less than
97 Supra, note 94
98 Supra, note 35, Ch. VIII, Art. 8.1 99 Supra, note 35, Ch. VIII, Art. 8.7
100 Supra, note 35, Ch. VIII, Art. 8.7, Annex 8A 101 Supra, note 94
expected procurement relations to markets of other countries. Clear preference to local firms has often been the case and a fact that International FTA’s have been keen on
readjusting. The GPA is for sure the agreement that mainly changes the procurement game between countries and makes sure that procurement markets open up to interaction with different countries. The agreement came to break the nationality stemming discrimination and unequal treatment towards business with key focus on central government. Various other bilateral FTAs follow the GPA guidelines, however where the procuring entity is not subject to the commitments set by the GPA or FTAs the bidding processes are affected by the preferences to domestic suppliers.
CETA and the procurement provisions it introduces has been rated very positively due to the expanded possibilities that emerge for EU and Canadian businesses and the boost of
competition. Nonetheless regarding the procurement sphere at least, CETA in fact does not have a lot more to offer compared to what Canada is already committed to under WTO GPA. The biggest part of CETA’s procurement chapter mirrors GPA directly and is not new to Canadian government procuring entities or to enterprises constantly looking for new business opportunities in the EU. Even so there are civil concerns that CETA’s air of change might violate the procurement activity of certain governmental entities of smaller presence. The lower thresholds introduced by CETA and broad coverage of local businesses will weaken the provincial governments’ capability to use procurement as a vehicle towards financial and societal growth.
As under the GPA also under CETA the Canadian provincial entities will need to take over possible administrative burden deriving from the obligation to provide information on procurement processes, activities and tenders in addition to having to justify their decisions to bidders who did not manage to succeed. Seeing this as a challenge it should be noted that all procurement moves and decisions will need to be approached with detail and caution. Whereas the advantages on financial level from the boost in market access are a big plus, the openness and fairness of public procurement will at the same time face the cost of detailed examination of numerous policy decisions at domestic level. This is certainly a consequence that can be accepted in entities governed by the rule of law like Canada and the EU.
Compromising part of localism in favor of global competition might as well be considered as a step further towards globalization and in this case it is of no doubt that CETA’s procurement provisions are a highlight of global economic governance.
Furthermore CETA is established at a vital period for the public dialogue over investment protection and in specific Investor-state dispute settlement (ISDS) which has been met with broad criticism and from many it has been questioned whether ISDS is deemed necessary when both states are characterized by strong legal systems. It is logical to stand before such strong discussions when taking into account that ISDS refers to the regulating power of states in favor of the public interest and may lead to important financial costs out of the public money.
Apart from the economic advantages Canada is with CETA given the chance to form a common market and thus live up to the expectations related to the provinces’ Agreement on Internal Trade, as it is a kind of paradox that Canada is not characterized by internal
economic integration whereas the EU does.103 Under CETA all provinces will have to proceed
with law harmonization towards the EU but also towards each other. So far, there is only one internal Trade, Investment and Labor Mobility Agreement (April 2007) between Alberta
and British Columbia whereas the Ontario-Quebec Trade and Cooperation Agreement was signed between the parties in September 2009.104
Both Canada and the EU have had high hopes for CETA and have waited for a long time until the agreement reached the point of its ratification as it is of no doubt that CETA will
represent an example to be followed in regards to future preferential trade agreements. It can even be considered an introduction for a broader transatlantic agreement that would aim for the US which might as well be a critical aim for the EU.
9. Conclusion
In times of political international turmoil and uncertainty free trade has seldom been of such significance, when observing the negotiations and development of Free Trade
Agreements under the veil of the presidential elections in the US or the exit of Britain from the EU(BREXIT).However 2017 has so far been the year where all eyes are on CETA and after the closing of the deal between the EU and Canada in October 2016, the European
parliament ratified CETA in February 2017 with implementation date in Canada the 1st of July
2017.
The existing free trade agreements of Canada are not fully comprehended nor integrated in business strategies by Canadian firms and as such important steps are made while
disregarding the jeopardy of competition among businesses. CETA brings along to this international competition level a significant rule of trade and investment that need to be taken into serious account by Canadian firms in order to guarantee their rights and advantages available to them. It is important that they do not lose ground compared to competitors who are fully aware of and ready to follow the advantageous rules provided by bilateral and regional free trade agreements.
The debate on CETA can surely go on for long even after the point of its ratification but in spite of the discussion, the criticism and scrutiny it is has received and will keep receiving we cannot disregard the greater picture. The opening of the procurement markets of the EU and Canada will meet enhanced competition levels, greater value for money in procurement services and multiple business opportunities for both parties. It is evident that the impacts of CETA on procurement will be more and stronger compared to the attention it has received so far. Protection of investment is under controversy while the limitations on discriminatory procurement are already met with frustration by protectionists. But
generally, the public sector will win from the access to a broader field of goods and services and economies will also benefit from the enhanced competition that is awaited as a natural outcome– that is unquestionably a fact that should be acknowledged and accepted by the procurement network in the EU, Canada and the rest of the world as a window to a future of alike agreements that CETA is setting the road for. It is a trigger for future development and a starting point that will also function as a point of referral among agreements. At the end we cannot look away from the value that CETA brings as a promising model in market access and government procurement development.
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