Desirability, democratic legitimacy
and impact of the Comprehensive
Economic Trade Agreement between
the European Union and Canada
A critical assessment of CETA from its negotiations to its
provisional application
Julie Yvens
julie.yvens@student.uva.nl
11583339 International and European Law: International Trade and Investment Law
Ingo Venzke 8th January 2018
This thesis provides a critical assessment of the Comprehensive Economic Trade Agreement between the European Union and Canada from its negotiations to its provisional application. The trade agreement negotiated during eight arduous years was and still is a source of debate and critics. This thesis explains the main points of controversy during the negotiations and the ones that emerged when the public learnt, belatedly, about CETA. The free trade agreement did not escape the current trend of negative opinion international trade and investment are facing nowadays. As a matter of fact, the public never ceased to reject CETA while, one the other side, the European Union and Canada could not be better defenders of it. Standing on the observation that there are two different points of view on CETA, for and against, this thesis tries to understand the reasons. The analyse led to a more global reflexion on the conclusion of CETA and free trade agreements by wondering the necessity for two democratic and strong entities like the European Union and Canada to sign FTAs, by questioning the democratic legitimacy of those and by analysing the impact of CETA on the
citizens, the third countries and the future FTAs. This thesis came to the conclusion that the influence of corporate lobbyists, inter alia, led to a trade agreement that did not pleased the majority.
Table of content
TABLE OF CONTENT 2
INTRODUCTION 3
1. THE NEGOTIATIONS OF THE COMPREHENSIVE ECONOMIC TRADE AGREEMENT (CETA)
BETWEEN THE EUROPEAN UNION AND CANADA 4
A. Before the negotiations 4
B. The conduct of the negotiations 6
C. Critical comments on the negotiations 7
2. CRITICAL POINT OF VIEW ON THE COMPREHENSIVE ECONOMIC TRADE AGREEMENT
(CETA) BETWEEN THE EUROPEAN UNION AND CANADA 10
A. Main points of critique 10
a. Economic benefits 10
b. Products and services 11
c. Investor-State Disputes Settlement 13
d. Political effect 14
e. Trojan horse 14
B. Rejection 15
a. Background 15
b. Some examples 16
c. Consequences of the rejection 17
C. Provisional application 19
3. GLOBAL REFLEXION ON THE CONCLUSION OF THE COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT (CETA) AND MODERN FREE TRADE AGREEMENTS (FTAS) 20
A. Necessity of CETA 20
B. Democratic legitimacy 21
C. Impact of CETA 24
a. Impact on European Union and Canada citizens 24
b. Economic impact on third countries 26
D. Conclusion 28
CONCLUSION 29
BIBLIOGRAPHY 31
Introduction
On the 21st September 2017, the Comprehensive Economic Trade Agreement (CETA) between Canada and the European Union was provisionally applied and to say that the journey was not easy is a euphemism. In reality, the negotiations of the trade agreement started in 2009 and it is only after a long and treacherous process that all the signatures were obtained in October 2016. The eight-year process can be explained, inter alia, by the broadness of CETA. In fact, CETA is a trade agreement that does not only open trade barriers but also protects investments and deals with diverse subjects as sustainable development, intellectual property, health, workers’ rights, etc.
This explains why President Juncker qualified CETA as their “best and most progressive trade agreement” and why EU Trade Commissioner Malmström emphasized this by saying that it is the “most ambitious trade agreement that the EU has ever concluded”. However, those descriptions enter into conflict with citizens’ and civil societies’ concerns about CETA. It is important to understand that there are two divergent opinions on CETA: on one side the proponents, consisting, in short, of the European Commission, the Canadian Government and corporations, think that CETA will boost the economy and uphold high standards of protection and on the other side, the civil societies and the majority of the public are scared that CETA will have a negative impact on them and on the political autonomy of their country.
It is on this basis that my thesis will stand. In the first chapter, the negotiations that started secretly in 2009 will be discussed with a focus on their democratic legitimacy. It is during the negotiations that critics started to emanate from the civil societies and more specifically in 2014 with the accumulation of the manifestations against the TTIP and the leak of a part of the CETA draft that opened the eyes of the majority. It will be shown that from the beginning, there were different points of view. The next chapter will firstly focus on the main criticisms that CETA is facing. This part will help us to understand the concerns of the
public and will be followed by a section about the rejection of CETA by the EU member states. In the final section of the chapter, the impact of the mobilization of both citizens and some EU member states on CETA will be considered by analyzing its revised and final 2016 version. The first two chapters exist to help us understand the major points about CETA and they will appeal for a more global reflection on CETA and free trade agreements. The third chapter dedicated to it will be divided in three parts. In the first part, the necessity of a free trade agreement between two developed entities will be analyzed. Then, the democratic legitimacy of CETA will be considered. Finally, the impact of the free trade agreement on its member state's citizens, on third countries and on future free trade agreements will be discussed.
Starting from the observation that there are two divergent opinions on CETA, we will try to understand why did we, as citizens, end up with a trade agreement that a great amount of people massively rejected? Should EU Commissioner Malmström really “crack open the champagne”1 when recent polls reveal that 64 percent of the French citizens are opposed to CETA2?
1. The negotiations of the Comprehensive Economic Trade
Agreement (CETA) between the European Union and
Canada
A. Before the negotiations
Although a substantial trading relationship existed between Canada and the European Union, they never had a strong treaty one. Before the negotiations of CETA, the only trade agreement they had, in addition to the fact that they are both members of the World Trade Organization (WTO)3, was a Framework Agreement for Commercial and Economic
1 C. MALMSTRÖM, “CETA – Making it work for your business” , Blog post, 3October 2017, available at
https://ec.europa.eu/commission/commissioners/2014-2019/malmstrom/blog/ceta-making-it-work-your-business_en (consulted on 9 November 2017)
2 M. C
OURT, “Sondage : glyphosate ou CETA, les français n’en veulent pas», Le Figaro, 27 October 2017,
available at http://www.lefigaro.fr/sciences/2017/10/26/01008-20171026ARTFIG00379-sondage-glyphosate-ou-ceta-les-francais-n-en-veulent-pas.php (consulted on 9 November 2017)
3 L. BORTA, “CETA – Bilateral Trade agreement between the EU and Canada”, CES Working Papers, Vol. VI,
Cooperation that has been in force since 19764. Canada was actually one of the only eight countries that did not have any preferential trade agreement with the European Union5.
The latest tendency for states is to sign Free Trade Agreements (FTAs). These go further than what is permissible under the WTO provisions6. This can be explained by the fact that the WTO went through numerous difficulties and that the international organization is no longer seen as able to provide a framework for free, fair and open trade7. Canada and the European Union are not escaping this tendency. In this section, the main point will be to understand why Canada and the European Union started to negotiate CETA.
While analysing the circumstances that drove Canada and European Union to start negotiating CETA, we notice that the trade agreement was more important for Canada than the European Union. In fact, in the beginning of the 21st century, Canada was, and still is, really dependent on the United States8 and had issues separating itself from the United States in order to find its place in a world where modern free trade agreements are propagating 9. Canada could have gone further with the United States by reinforcing NAFTA however that trade agreement had reach its limits10. The European union was the best trade choice for Canada to start negotiations with for numerous reasons. Firstly, the European Union is the second most important trading partner of Canada after the United States11. In less than 10 years, Canadian exportations doubled from 5% in 2002 to 10,3% in 201112. Secondly, the European Union might not have the economic dynamism of some other developing countries but its institutions are really strong13. Finally, Canada has never been the priority for the EU14 and CETA can change the vision investors of the European Union have of it15. On the other side of the Atlantic, the lack of enthusiasm was palpable 16. The decision of the European
4
Ibidem, p. 18
5 R. M
ACLAREN, “Canada-EU free trade: a building block for renewed multilaterals”, School of Policy Studies
Briefing Paper, University of Calgary, 2008
6 J. MATHIS, “Multilateral aspects of advanced regulatory cooperation: Considerations for the Canada-EU
Comprehensive Trade Agreement (CETA)”, Legal Issues of Economic Integration, Kluwer Law International, 2012, p. 73
7 L. BORTA, op. cit., p. 18 8 C. D
EBLOCK and M. RIOUX, “From Economic Dialogue to CETA”, International Journal, Winter 2010-2011,
p. 47; E. KITOU and G. PHILIPPIDIS, “A quantitative economic assessment of a Canada-EU Comprehensive Economic Trade Agreement”, Thirteen Annual Conference on Global Economic Analyze, Bangkok, 9, 11June 2010, p. 1
9 C. D
EBLOCK and M. RIOUX, op. cit., p. 40 10 Ibidem, p. 40
11 L. B
ORTA, op. cit., p. 19
12 E. DUCHESNE and J.-F. MORIN, “Revisiting Structural Variables of Trade Negotiations: The case of the
Canada-EU Agreement”, Martinus Nijhoff Publishers, Leiden, 2013, p. 15
13 C. DEBLOCK and M. RIOUX, op. cit., p. 50 14 Ibidem, p. 48
15 Ibid., p. 51 16 E. D
Union to start negotiating was more strategic than economic. In fact, the European Union is currently negotiating Free Trade Agreements (FTAs) with many countries and CETA can be the example of new trade agreements that are being signed by EU. By negotiating with a developed country with shared values like Canada, for the EU it is an easy way to set up a model for future negotiations17.
B. The conduct of the negotiations
The negotiations officially started in May 200918 and, in June 2009, Canada and the European Union came with an agreement on the content and general modalities of the agreement19. They both agreed that the treaty will go further than WTO provisions20. The first round of negotiations started in October 200921. Although, it was only on the 18th October 2013 that Canada and the EU managed to come up with a political agreement eliminating tariff barriers22 the Canadian Prime Minister Harper and the President of the European Commission Barroso signed the trade agreement, even later, on the 26th September 201423.
The negotiations were supposed to last 18 months but lasted more than 4 years24. There are some reasons that can be given to explain delay. First, there was intensive lobbying from both sides25. Second, the Canadian’s provinces implication slowed things down26. Another reason brought by Teresa Healy was the political tension between the Canada Labour Congress (CLC) and the European Trade Union Confederation (ETUC), two major labour unions27. The Canada Labour Congress was scared that corporate decision-making would replace public decision-making while the ETUC thought that it was possible to defend workers’ rights and environmental standards in free trade agreements. In other words, CLC
17 Ibidem, p. 16 18
L. BORTA, op. cit., p. 18
19 S. T
REW, “Correcting the Democratic deficit in the CETA negotiations: Civil society engagement in the
provinces, municipalities and Europe”, International Journal, 2013, p. 569
20 T. H
EALY, “Canadian and European Unions and the Canada – EU CETA Negotiations”, Globalizations, vol.
11, n° 1, 2014, p. 59
21 S. T
REW, “Correcting the Democratic deficit in the CETA negotiations: Civil society engagement in the
provinces, municipalities and Europe”, op. cit., p. 569
22 L. B
ORTA, op. cit., p. 18
23 P. KOHLER and S. STORM, “CETA without blinders: How cutting ‘Trade costs and more’ will cause
unemployment, inequality and welfare losses”, International Journal of Political Economy, Tufts University, 2016, p. 257
24 P. F
AFARD and P. LEBLOND, “Closing the deal: What role for the provinces in the final stages of the CETA
negotiations?”, International Journal, 2013, p. 553
25 Ibidem, p. 554 26 Ibid., p. 554 27 T. H
was opposed to free trade and ETUC was accepting it because it expected social improvement out of it28.
Despite the delay, CETA, as already stated, was signed on the 26th September 2014 by Canada and the European Commission29. Usually after the negotiations of a trade agreement, the text is then analysed by the lawyers of the parties. That is what happened with CETA. However, due to widespread rejection, the legal polishing that occurred was out of the ordinary. In fact, according to a study, the version of 2014 and the version of 2016 differed by 19%. By consequence, the legal scrubbing can be considered as a quasi-renegotiation30. Due to the fact that the European Commission qualified CETA as an EU-mixed agreement, the EU Member States had to also sign the treaty. The signature was initially planned on the 27th October 2016 during the EU-Canada summit in Brussels however Belgium refused to sign it so the signature was postponed to the 30th October 2016 after some modifications that pleased Belgium were included31.
C. Critical comments on the negotiations
“Nowadays, what feed the crisis in Europe is the way we are
negotiating paramount agreements”32.
The World Trade Organization recognized the transparency principle33 as a core principle of the rule of law34 and provides in the article X GATT that WTO members have to make all the information related to trade accessible to other WTO members35. Albeit this article cannot be applied in the context of negotiations of free trade agreements, it is undeniable that transparency is an important principle for the World Trade Organization and for other
28 Ibidem, pp. 59-67
29 P. KOHLER and S. STORM, op. cit., p. 257 30 W. A
LSCHNER and D. SKOUGAREVSKIY, “Mapping the Universe of International Investments Agreements”,
Journal of International Economic Law, Oxford, vol. 19, September 2016, p. 585
31 N. M
EYER-OHLENDORF, C. GERSTETTER and I. BACH, “Regulatory Cooperation under CETA: Implications for
Environmental Policies”, Eco Logic Institute, Greenpeace, 1 November 2016, p. 8
32 Quote from Paul Magnette originally in French : “Ce qui alimente aujourd’hui la crise de l’Europe, c’est la
manière de négocier des textes d’une telle importance” available at :
http://www.lemonde.fr/europe/article/2016/10/20/la-wallonie-maintient-son-opposition-au-traite-commercial-ceta-avec-le-canada_5017686_3214.html (consulted on 27 October 2017)
33 Ibidem, p. 94
34 General Agreement on Tariffs and Trade of 1994, article X 35 L. B
international organizations36. In addition, the European Union has the obligation to “give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action”37. In this section, the main point is to find out if the CETA negotiations were transparent and inclusive for civil societies.
At the beginning of the negotiations in 2009, the public was not very interested by CETA however with the TTIP negotiations38, the public started to gain interest in CETA and corresponding concerns39. The CETA negotiations were conducted behind closed doors so the public could not have access to the negotiations in order to make their claims or, at least, to know what was going on.
It is interesting to notice that the opinion on the CETA negotiations differs depending on whether we are looking at the Canadian and EU point of view or at the opinion of civil societies. On the one side, civil societies claimed that the CETA negotiations were not transparent and not inclusive40 while, on the other side, the EU and Canada defend themselves by saying that they both put in place opportunities for consultation and feedbacks41. In fact, Canada argues that the CETA negotiations were the most transparent and inclusive negotiations they ever had42 while the general opinion is that the interest of civil societies and the citizens in general have been put aside in favour of business interests43.
It has to be recognized that efforts have been made from both sides of the Atlantic to let civil societies accessing information about CETA however those efforts were not enough44. In August 2014, a leak of 500 pages of the draft of CETA forced Canada and the EU to be more
36 L. B
IUKOVIC, “Transparency norms, the World Trade System and Free Trade Agreements: the case of CETA”,
Legal Issues of Economic Integration, Kluwer Law International, 2012, p. 94
37 Treaty on European Union of 2012, Art. 11; E.-U. P
ETERSMANN, “Transformative Transatlantic Free Trade
Agreements without Rights and Remedies of Citizens?”, International Journal of Economic Law, Oxford, vol. 18, Issue 3, 2015, p. 590
38 Transatlantic Trade and Investment Partnership between the European Union and the United States 39 W. T
ROSZCZYNSKA-VAN GENDEREN, op. cit., pp. 11-13
40 W. TROSZCZYNSKA-VAN GENDEREN, “Stakeholder, parliamentary and third country concerns about the
EU-Canada Comprehensive Trade and Economic Agreement (CETA)”, Directorate-General for External Policies, Policy Department, European Parliament, December 2014, p. 4
41
Ibidem, p. 4
42 S. T
REW, “Correcting the Democratic deficit in the CETA negotiations: Civil society engagement in the
provinces, municipalities and Europe”, op. cit., p. 568
43 Examples: Open Civil Society Declaration on a proposed Comprehensive Economic and Trade Agreement
between Canada and the European Union, signed by a number of organizations, available at
http://tradejustice.ca/en/section/22 ; See also Centre for Civic Governance at www.civic governance.ca/taxonomy/term/109 ; We Are Change Toronto at http://wearechangetoronto .org/2011/01/27/from-nafta-to-ceta-canada-eu-deep-economic-integration/ ; Canadian Centre for Policy Alternatives at www.policyalternatives.ca/newsroom/news-releases/canada-eu-free-trade- deal-could-cost-150000-canadian-jobs-study ; Found in L. BIUKOVIC, op. cit., p. 100
44 G. LÜBBE-WOLFF, “Democracy, Separation of Powers, and International Treaty-making. The example of
open about their negotiations and explained in depth how CETA was going to work45. The final draft was published in September 2014 after intense public pressure however it was a 1637- page document with a table of contents lacking any numbers. It was clear that Canada and the European Union did not want the public to fully understand what they had negotiated. The version of CETA released in February 2016 was actually worst because there was not a table of contents at all46.
The argument exists that too much transparency can actually freeze international treaty-making however that argument cannot stand in the context of negotiations of free trade agreements because the issues at stake are too important and there is a need for a discussion of democratic legitimacy. In fact, negotiating an international treaty is not like creating domestic law. There are, indeed, some differences that makes transparency important to ensure a democratic process. First, at the international level, the executive, who are not elected, have a lot of power. Second, parliament does not have a preponderant influence. Then, the lobbyists are more influent. Finally, when an agreement is concluded it is hard to change it or cancel it. For all those reasons, governments cannot claim that they need transparency to conclude trade agreements at an international level because the need for discussion and debate from the public is more important47.
In 2014, the “euro-barometer” settled that EU citizens’ confidence towards the European Union was at its lowest, in fact “citizens believe that their voices are not taken into account by the EU, which they consider to be removed from their concerns and lacking in transparency”48. The fact that CETA was negotiated in secret did not help the reputation of the European Union49.
To conclude this chapter, it is interesting to notice that from the beginning, opinions were divergent about CETA. The public was having concerns about the trade agreement since the beginning of the negotiations because of the sensitive topics and the way the negotiations were handled while Canada and the EU were both defending themselves.
45 W. TROSZCZYNSKA-VAN GENDEREN, op. cit., p. 4 46 G. L
ÜBBE-WOLFF, op.cit., p. 187 47 Ibidem, p. 198
48 E.-U. P
ETERSMANN, “Transformative Transatlantic Free Trade Agreements without Rights and Remedies of
Citizens?”, op. cit., p. 594
2. Critical point of view on the Comprehensive Economic
Trade Agreement (CETA) between the European Union and
Canada
A. Main points of critique
The purpose of this section is to list the major areas of CETA that are issues for the public. This chapter will divide the criticisms into five major fields and will analyse the opinion of Canada and the European Union and the opinion of the citizens that are diametrically opposed in order to explain in the next chapter the reasons for this.
a. Economic benefits
The CETA defenders argue that cutting trade costs by diminishing tariffs and non-tariffs barriers will engender economic benefits50. The European Commission and Canada had financed four studies to evaluate the possible economic gains CETA might bring to the Canadian and European citizens. According to those studies the Gross Domestic Product (GDP) of the EU will increase between 0,003% and 0,08% (€11,6 billion51) in a decade and for Canada the increase will be between 0,03% and 0,76% (€8,2 billion52)53. Those amounts are consequent. However, those studies are not considered by experts as a solid basis because they are based on a neo-classic economic system that is no longer relevant since the 2008 crisis54. In addition, due to the high competition context, the consequences of CETA are likely to be unemployment, inequality and welfare losses55. Le Monde Diplomatique, a French journal, decided to make a more realistic study about the impact of CETA on the EU citizens and their results are also negative; salaries diminution, jobs loss and political pressure on the government. The two economists, Pierre Kholer and Servaas Storm, estimated that 230.000 jobs could be lost because of CETA with 200.000 lost on the European side. Le Monde
50 P. KOHLER and S. STORM, op. cit., p. 257 51 G. M
OODY, "CETA: The Canadian TTIP nobody noticed until it was (almost) too late", Ars Technica, 14 June
2016, available at https://arstechnica.com/tech-policy/2016/06/ceta-canadian-ttip-what-is-it/ (consulted on 5 January 2018)
52 Ibidem 53 P. K
OHLER and S. STORM, op. cit., p. 257
54 More explanation on why those four studies are not relevant: P. KOHLER and S. STORM, op. cit., p. 258 55 P. K
Diplomate added that the capital will move from workers’ hands to the capital’s holders56.
McKenzie emphasised that there is a high probability that producers will enjoy a wider margin instead of consumers enjoying lower prices 57.
One of the major arguments of the proponents of CETA is that it is going to boost exportations. Exports are, indeed, creators of jobs. For example, one job out of every five in Canada can be linked to exports. However, a relationship between two countries has to be reciprocal. This means that if you are exporting goods or services you also have to import goods or services to balance the relationship. That said, imports are not positive for employment because they reduce the domestic demand for that good or service58. In consequence, how can Canada and Europe argue at the same time that CETA is going to bring economic benefits without admitting that the other side of exportation is importation.
In addition, free trade agreements do not automatically lead to an expansion of trade because there are other factors that need to be taken into account such as, for example, consumers’ preferences59. As a matter of fact, some consumers will not change their habits or some consumers will protect their traditions or countries. For instance, in the last decade, there is a tendency to buy a product or a service that is local. According to a survey on the factors that are important for Canadians when buying a product or a service, 64% think that the price is important but 39% of the respondents also think that the fact that it is locally produced is important60.
b. Products and services
Numerous concerns have been raised by the public relating to the treatment of products and services in CETA.
56 P. K
OHLER and S. STORM, “Rejet wallon du CETA, nouvel accroc pour le libre-échange”, Le Monde
Displomatique, 14 October 2016, available at
https://www.monde-diplomatique.fr/carnet/2016-10-14-Rejet-du-Ceta-accroc-libre-echange (consulted on 3 November 2017)
57 F. MCKENZIE, “Faith, fear, and free trade”, International Journal, SAGE Publications, vol. 69, Issue 2, 2014,
pp. 242-243
58 Ibidem, p. 237 59 Ibid., pp. 242-243
60 Business Development Bank of Canada, “Pour croître, les entrepreneurs doivent surveiller les tendances de
consommation: nouvelle étude de BDC”, BDC, Montreal, 21 October 2013, available at
https://www.bdc.ca/fr/a_propos/centre_des_medias/communiques/pages/les_entrepreneurs_doivent_surveiller_le s_tendances_de_consommation.aspx (consulted on 8 November 2017)
First, on our side of the Atlantic, the public is scared that CETA will have a negative impact on health standards and the protection of consumers61. In fact, even if Canada recognized high standards, European ones are higher. For example, in Canada GMOs are legal and in Europe this is not the case. In CETA, the entrance of hormonal beef from Canada to the European Union has been forbidden however a recent report shows that the means to control those rules during the importation from Canada are not sufficient62.
Second, there are some major concerns about the impact on some markets of the opening of the competition on both sides of the Atlantic. For Canada, their concerns are about the dairy industry. Canadians like European Union cheese and Canada is going to protect cheese indications from the European Union. According to an estimation from DPAC-ATLC, CETA could potentially lead to a 150€ million loss and a 2900 cut of jobs in the dairy industry in Canada63. In the European Union, the concerns are about the importation of Canadian beefs because the competition will not be fair due to the fact that the cost of production is lower and the standards are less constraining on Canada64. In a global context, the loss of jobs and economic benefits could be balanced but the problem is that on an individual level, people are actually going to lose income or their jobs because CETA is not taking into account the fact that people cannot adapt easily to the market demands.
Regarding services, all trade in that sector has been liberalized except the services that are excluded in a specified list65. The consequence of this is that public services will have to compete with private suppliers or will have to become private66. The main argument is that competition in the services field leads to an improvement of the quality of the service and a decrease of the tariffs. However, privatization of services does not have a positive impact in
61 W. S
CHROEDER, “Transatlantic Free Trade Agreements and European Food Standards”, EFFL, vol. 6, 2016, p.
494
62 M. V
AUDANO, “Ce que va changer le CETA dans la vie des Européens”, Le Monde, 20 September 2017,
available at http://www.lemonde.fr/economie/article/2017/09/20/ce-que-va-changer-le-ceta-dans-la-vie-des-europeens_5188313_3234.html (consulted on 2 November 2017)
63 Dairy Industries International, “European dairy welcomes CETA deal”, Dairy Industries International,
December 2016, pp. 14-15
64 M. VAUDANO, op. cit. 65 K. A
CKHURST, S. NATTRAS and E. BROWN, “CETA, the Investment Canada Act and SOEs: A brace new
world for free trade”, ICSID review, Oxford, vol. 31, 2016, p. 61
66 G. L
the long-term because those services are turning into corporations seeking profits67. Furthermore, once a public service is open to privatization it is hard to go back 68.
c. Investor-State Disputes Settlement
The European Commission described in 2013 the Investor-State Dispute Settlement as “a procedural mechanism provided in international agreements on investment. Countries sign such agreements in order to set out ground rules when foreign companies invest on their territory. ISDS allows an investor from one country to bring a case directly against the country in which they have invested before an arbitration tribunal”69.
Nowadays, investment arbitration is facing a legitimacy crisis70. In fact, there is a major rejection by the public of ISDS for several reasons. Firstly, the lack of transparency of ISDS leads the public to be doubtful about the mechanism. Mourre emphasized that “public opinion will not tolerate unknown and unelected people to dispose of the destiny of nations in dark and secret rooms”71. Secondly, some treaties are written in general terms and it can lead to governments being held responsible in front of an arbitration tribunal because they have used rules to promote public welfare72. Thirdly, the public fears that ISDS reduces the power of states to regulate73. In addition, ISDS has been known to lack independence, impartiality, consistency and coherence and also to be a long and costly procedure74.
During the TTIP negotiations, a lot of voices raised concerns against ISDS and between 2014 and 2015, European citizens voted against the use of the mechanism in future
67 Y. C
ORVER, “Impact de la libéralisation des services publics marchands”, Mediapart, 9 December 2015,
available at https://blogs.mediapart.fr/yves-corver/blog/091215/impact-de-la-liberalisation-des-services-publics-marchands-1 (consulted on 20 October 2017)
68 T. L
EMAHIEU, “Du CETA au TAFTA, les dominos du libre-échange peuvent tomber”, L’Humanité, 21 July
2016, available at https://www.humanite.fr/du-ceta-au-tafta-les-dominos-du-libre-echange-peuvent-tomber-612338 (consulted on 20 October 2017)
69
E. YENCKEN, “Lessons from CETA: Its implication for future EU Free Trade Agreements”, Workshop
Programme OEFSE, University of Melbourne, available at
http://www.oefse.at/fileadmin/content/Downloads/tradeconference/Yencken_Lessons_from_CETA__Implicatio ns_for_future_EU_FTAs.pdf (consulted at 20 October 2017)
70 E. SHIRLOW, “Dawn of a new era? The UNCITRAL Rules and UN Convention on Transparency in
treaty-based Investor-State arbitration”, ICSID Review - Foreign Investment Law Journal, Oxford, vol. 31, Issue 3, 30 June 2016, p. 622
71 Ibidem., p. 622
72 C. HENCKELS, “Protection Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP,
the CETA and TTIP”, Journal of International Economic Law, Oxford, vol. 19, 2016, p. 28
73 L. PUCCIO and R. HARTE, “From arbitration to the investment court system (ICS) – The evolution of CETA
rules”, European Parliamentary Research Service, June 2017, p. 9, available at
http://www.europarl.europa.eu/RegData/etudes/IDAN/2017/607251/EPRS_IDA(2017)607251_EN.pdf
(consulted on 25 October 2017)
74 S. SCHACHERER, “TPP, CETA and TTIP between Innovation and Consolidation – Resolving Investor-State
European Union trade agreements. Despite this, in September 2014 when the first draft of CETA was released, the investor-state dispute settlement was incorporated in the agreement. The significant public rejection pushed Canada to reopen the negotiations about that subject and in February 2016 a new text with a new dispute settlement mechanism was released75. The modifications will be observed later in this thesis.
d. Political effect
One major concern that needs to be stated in this thesis is the impact of CETA on the power of regulation of Member States.
In fact, the public fears that CETA will have an effect on the decisions of the parties because they will have to respect their obligations with the consequence that it can have on consumer, environmental and labour protection. Furthermore, there is a risk that the regulatory cooperation provisions in CETA will reinforce the influence of corporations on the parties76.
In addition, because of the dispute settlement mechanism provisions in CETA that would allow foreign investors to bring a claim directly to a state, if the state were to take measures seen as barriers to investor interests, states might be constrained indirectly from being able to change their policy to avoid these claims which would have disastrous consequences on human, environmental, health and safety rights77. In the long term, the whole political landscape of the European Union could become increasingly liberal in order to avoid arbitration78.
e. Trojan horse
One other potential negative consequence that CETA could have is to be used as a Trojan horse by the United States corporations to be able to attack EU member states in front
75 Ibidem, p. 630
76 G. LÜBBE-WOLFF, op. cit., pp. 178-179 77 S. A. S
PEARS, “The quest for policy space in a new generation of international investment agreements”,
Journal of international Economic Law, Oxford University Press, 2010, vol. 13, n° 4, p. 1039
78 E. W
OODFORD, “Don’t be fooled by CETA: It’s a wolf in sheep’s clothing”, Euractiv, 23 September 2016,
available at https://www.euractiv.com/section/trade-society/opinion/dont-be-fooled-by-ceta-its-a-wolf-in-sheeps-clothing/ (consulted on 15 October 2017)
of an arbitral tribunal due to the fact that 80% of US corporations have subsidiary firms in Canada79.
B. Rejection
a. Background
Since 2009 and the Lisbon Treaty, the European Union has competence in international investment law and policy80. According to Article 207 TFEU, the European Union is exclusively competent to negotiate and sign trade agreements. However, lately, the European Union has been negotiating free trade agreements that are going further than simple trade agreements. As a result, there has been a debate about which entity should have the competence to deal with these new free trade agreements; are they “EU-only” or “mixed” trade agreements? Juncker, on the 28th June 2016 said that CETA was an “EU-only” agreement however on the 5th July 2016 the Commission submitted CETA as a “mixed” agreement81 by explaining that “from a strict legal standpoint, the Commission considers this agreement to fall under exclusive EU competence but we need to propose it as a mixed agreement in order to allow for a speedy signature”82. By consequence, all Member States of the European Union have to be a part of the signature process of CETA and its provisional application83.
It is interesting to discuss briefly a recent opinion of the CJEU on the competence of the EU while negotiating and signing trade agreements. On the 16th May 2017, the CJEU in Opinion 2/15 affirmed that the EU has exclusive competence for international agreements relating and only relating to foreign direct investment. If an international agreement goes wider, the European Union will have to share competence with its Members states with the consequence that international agreements will have to comply with constitutional provisions of those member states84.
79 T. LEMAHIEU, op. cit. and E. WOODFORD, op. cit. 80 M. G. M. L
ENTNER, “A Uniform European Investment Policy? The unwritten EU model BIT”, Journal of Law
and Administrative Sciences, Petroleum and Gas University Publishing House of Ploiesti, n° 2, 2014, p. 156
81 T. D
OLLE and B. G. SIMOES, “Mixed feelings about ‘Mixed agreements’ and CETA’s provisional
application”, E.J.R.R., Cambridge University Press, 2016, p. 617
82 Ibidem, p. 619
83 D. KLEIMANN and G. KUBEK, « The signing, provisional application, and conclusion of Trade and Investment
Agreements in the EU – The case of CETA and opinion 2/15 », EUI Working Papers, Robert Schuman Centre for Advanced Studies, 2016, p. 1
84 Opinion of the CJEU of 16 May 2017 (Case 2/15) ; J. K
ILLICK; J. WAUTERS; S. NORDIN; G. FORWOOD; F.
VERMEEREN and C. VAN HAUTE, “EU Court confirms EU competence on wide range of trade areas in opinion
b. Some examples
By being part of the CETA process, EU Member States were able to reject it and by consequence some of them threatened to refuse to finalise the agreement85. Ironically by stating that CETA was a mixed-agreement in order to allow for quicker ratification, the European Commission slowed things down. In this section, we will fly over some of the rejections of Member States before concentrating on Belgium's rejections and the consequences of it.
In the Netherlands, the automatic provisional application was rejected by the parliament on the 28th April 2016 and it asked the Government to come up with a proposal in order to make a decision about CETA86. In Germany, in September 2014 the Government refused to sign CETA because of ISDS 87. In addition, the Constitutional Court had to deal with a large number of legal actions about CETA. The most illustrative example is when 125.000 citizens lodged a complaint against CETA on the 31st August 201688. Another example is the complaint from Die Linke in 2015, the leader of the left party who explained that the fact that the Government put corporations’ interests before those of citizens was an attack against democracy and that CETA should be ended89. In France, some journalists revealed some questionable manoeuvrings from politicians who are in favour of CETA. There was a vote inside the Chamber of Commerce to see if France should accept to vote for CETA or not. Twelve people voted for CETA and 4 against it. However, this chamber is supposed to be composed of 48 people and there were only 18 people present (2 abstentions) and out of those people, 5 people quit the morning of the vote and were replaced by defenders of CETA and perhaps even more shockingly, one of the five replacements was the substitute of Fekl who is the secretary of state in charge of international trade and, without a doubt, a proponent of CETA90.
https://www.whitecase.com/publications/alert/eu-court-confirms-eu-competence-wide-range-trade-areas-opinion-eu-singapore-fta (consulted on 5 November 2017)
85 W. T
ROSZCZYNSKA-VAN GENDEREN, op. cit., p. 6
86 Motie van de Leden Grashoff en Jan Vos, Tweede kamer der Staten-Generaal, 28 April 2016, available at
https://fr.scribd.com/doc/310772482/Aangenomen-Motie-Voorlopige-Toepassing-Van-CETA (consulted on 5 January 2018). quoted in T. DOLLE and B. G. SIMOES, op. cit., p. 620
87 W. T
ROSZCZYNSKA-VAN GENDEREN, op. cit., p. 6 88 T. DOLLE and B. G. SIMOES, op. cit., p. 621 89 T. L
EMAHIEU, op. cit.
90 N. FERRONI, “M. Fekl… CETA se demander pourquoi ? ”, Political column on Youtube, 15 October 2016,
On the 27th April 2016, Wallonia voted in order to prevent the Belgian Federal Government from possessing full power to sign CETA91. On the 27th October 2016, all the EU Member States were supposed to sign CETA but because of the Belgium veto the vote did not happen before the 30th October92.
c. Consequences of the rejection
As we saw during this chapter, since the release of the CETA draft in 2014, and even before that, the public had significantly rejected the application of CETA. In this section, we analyse the consequences of those rejections; the legal-scrubbing between the version of 2014 and 2016 that we can qualify as a quasi-renegotiation and the mechanisms put in place to please Belgium that eventually forced them to sign it in October 2016.
The main modifications concerned the investment provisions in CETA93. Some other mechanisms were also put in place to reassure Belgium such as a right of inspection during the provisional application of CETA and a safeguard clause that Belgium can activate if there is an imbalance in the agricultural market. In addition, Belgium was reassured about GMOs and the fact that CETA will not change anything in the EU regulations about them94.
The European Union also reassured the EU Member States by saying that the right to regulate for public policies will be safe. For example, a rule that will affect the investment of a foreign investor will not be considered as inconsistent with CETA itself95. The European Commission's goal was to ensure that investors will not be able to get compensation just because they lost profits as a result of a regulation that a state took for public policies 96.
The main issue for the public was ISDS and hopefully, the European Union and Canada changed the mechanism by putting in place a permanent court composed of 15 arbitral members including 5 EU nationals, 5 Canadians and 5 nationals from third countries and an Appellate Tribunal. The Investment Court System (ICS) was first proposed in
91 Walloon Parliament, Résolution sur l’accord économique et commercial global (AECG), 27 April 2016 92 T. DOLLE and B. G. SIMOES,op. cit., p. 620
93 For a complete description of the new VIII chapter: E. S
ARDINHA, “Towards a new horizon in Investor-State
Dispute Settlement? Reflections on the Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA)”, in The Canadian Yearbook of international law, Cambridge, 2016
94 France TV info, “Ce que contient le CETA depuis les modifications belges”, France TV info, 27 October
2016, available at http://www.francetvinfo.fr/economie/commerce/traite-transatlantique/ce-que-contient-l-accord-belge-sur-le-ceta_1892809.html (consulted on 20 October 2017)
95 European Commission, “CETA: EU and Canada agreement on new approach on investment in trade
agreement”, European Union News Archive, Bruxelles, 29 February 2016, available at
http://trade.ec.europa.eu/doclib/press/index.cfm?id=1468 (consulted on 15 October 2017)
96 C. TITI, “International Investment Law and the European Union: Towards a new generation of International
September 2015 by the European Commission for the TTIP97 but was also incorporated in CETA98.
Now, we will analyse the revised dispute settlement mechanism of CETA in the light of the 4 main concerns that are usually stated against investor-state arbitration. The first criticism is that ISDS can lack independence and impartiality. From now on, the 15 arbitral members will be elected before the issues, based on their expertise of public international law and the ones who are going to deal with the issue will be selected on rotation in order to ensure unpredictability in this respect. In addition, the arbitral members are going to be paid by the European Union and Canada on the basis of a monthly retainer fee. The second common criticism is that ISDS can lack consistency and coherence. Schacherer mentioned the idea that the Appellate Body might lead to more coherence because the arbitral members, in order to avoid appeal, will probably follow previous decisions of the permanent court but it is too early to know yet. The next criticism is the fact that ISDS can be long and costly. The CETA answer is to limit the scope of disputes and to put in place the “loser pays” principle. The last criticism is the lack of transparency. CETA decided to go further than the UNCITRAL provisions (UNCITRAL-Plus) by compelling the publication of documents relating to the hearings, by making the hearings public and by making it impossible for the parties to be opposed to that and finally by putting in place the possibility of the submission of amicus curie briefs during the process99.
The European Commission said that the CETA mechanism was the “most progressive system to date”100 and it is, without a doubt, a break from the past. However, scholars pointed out that there are still a lot of similarities with traditional investment arbitration101 and that the main problems are still there. In fact, the arbitral members can still interpret widely the right of foreign investors or “fair and equitable treatment” and “indirect expropriation”102.
In addition, even with the modifications that CETA went through, the defining feature of investors-states arbitration remains a problem: only foreign investors can have access to that mechanism. In fact, the article 14.16 of CETA draft (incorporated as article 30.6 in the revised version103) denies direct effect for EU citizens which means that they will not be able
97 European Commission Draft can be found at:
http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf (consulted 7 on November 2017)
98 L. P
UCCIO and R. HARTE, op. cit. 99 S. SCHACHERER, op. cit., p. 644. 100 K. A
CKHURST, S. NATTRAS and E. BROWN, op. cit., p. 62 101 S. SCHACHERER, op. cit., p. 644.
102 E. W
OODFORD, op. cit.
103 E.-U. PETERSMANN, “Democratic legitimacy of the CETA and TTIP agreements?”, in Mega-Regional Trade
to lodge a claim in the case of an EU violation of CETA104. When we analyse the position of domestic investors in comparison with those of foreign investors, discrimination appears to exists. In fact, domestic investors are facing the normal risks of democracy, regulation and courts while foreign investors have the right to pursue countries at an international level. This privilege is in place to protect foreign investors interests and not those of the public and so it does not sit well with the public105.
Belgium, on the 6th September 2017, asked the Court of Justice of the EU to deliberate on the compatibility of the Investment Court System (ICS) with EU law. The CJEU will have to pronounce itself in 18 months and the decision could make CETA void so it is important to follow the result106.
Since the release of the CETA draft in 2014, Canada and the EU have made some efforts to answer the concerns of the public and the Member States. Firstly, with the quasi-renegotiation between September 2014 and February 2016 and secondly by reassuring them and more specifically Belgium between the 27th October 2016 and the 30th October 2016. However, most of the concerns still exist even with the modifications.
C. Provisional application
Article 30.7 states that “(…) The Parties may provisionally apply this Agreement from the first day of the month following the date on which the Parties have notified each other that their respective internal requirements and procedures necessary for the provisional application of this Agreement have been completed or on such other date as the Parties may agree (…)”.
This article allows the provisional application of CETA in order to give effect to the trade agreement without having to wait years for the ratification of all the parties. It is important to note that not all the provisions can apply107. In fact, only the provisions that are a matter of EU exclusive competence can provisionally apply108. Despite major concerns from the public
104 E.-U. P
ETERSMANN, “Transformative Transatlantic Free Trade Agreements without Rights and Remedies of
Citizens?”, op. cit., p. 590
105 G. V
AN HARTEN, “The European Union’s Emerging Approach to ISDS: A Review of the Canada-Europe
CETA, Europe-Singapore FTA, and European-Vietnam FTA”, Bologna Law Review, vol. 1, 2016, p. 164
106 E. S
ARDINHA, op. cit., p. 3
107 N. MEYER-OHLENDORF, C. GERSTETTER and I. BACH, op. cit., p. 7 108 Ibidem, p. 7
about CETA, the EU and Canada decided to provisionally apply it on the 21st September 2017109. Hopefully, the dispute settlement mechanism is not applicable yet110.
3. Global reflexion on the conclusion of the Comprehensive
Economic and Trade Agreement (CETA) and modern Free
Trade Agreements (FTAs)
A. Necessity of CETA
The question here concerns the usefulness of a free trade agreement between two strong economic entities. In addition, Canada and the EU are both members of the World Trade Organization and both already have strong trade relations. However, there is a trend towards protectionism since the 2008 crisis and with the deadlock the WTO is currently facing, states have the tendency to sign regional trade agreements111. As previously mentioned, it is for this reason that the EU and Canada entered into negotiations. In addition, the reasons could also be to counterbalance unfair competition from China and to have the ability to withstand the current administration of the United States. However, new-generation free trade agreements do not only possess good sides, as stated in chapter 2 of the thesis. By consequence, why should Canada and the European Union sign an agreement that will result in a loss of political autonomy, democratic accountability112 and that might have a negative impact on their citizens?
Another question is the necessity for two developed countries with adequate legal protection to protect their mutual investments. In fact, traditionally, investment protection was set up in trade agreements in order to protect capital-exporting countries that were investing in countries without any adequate legal protection113. Canada and the European Union argue that
109 L'express, “Commerce : ça y est, le traité Europe-Canada entre en vigueur”, L’express, 21 September 2017,
available at http://lexpansion.lexpress.fr/actualite-economique/commerce-ca-y-est-le-traite-europe-canada-entre-en-vigueur_1945447.html (consulted 30 October 2017)
110 Ibidem 111 T. J. B
OLLYSKY and P. C. MAVROIDIS, “Trade, Social preferences and Regulatory Cooperation. The new
WTO-link”, Journal of International Economic Law, Oxford, 2017, p. 3
112 P. K
OHLER and S. STORM, op. cit., p. 258
113 K. D. DICKSON-SMITH, “Does the European Union have new clothes?: Understanding the EU’s new
protecting their investments is critical because they both invest a lot in each other114. In addition, The European Commission said in 2010 that the ISDS is “such an established feature of investment agreements that its absence would in fact discourage investors and make a host economy less attractive than others. For these reasons, future EU agreements including investment protection should include Investor-State Dispute Settlement”115. Nevertheless, when we are putting on the balance the explanation of EU and Canada against the mass of critics that the chapter about investment of CETA is facing, it is difficult to understand the necessity of a mechanism for investors’ protection.
In the European Commission report on the public consultation on investment protection in the EU-USA negotiations for the TTIP, almost all NGOs put forward a consideration that the domestic courts could and should be the only ones dealing with investment protection because they will be more objective116. However, due to the presence of a “non-direct effect” clause in CETA, without ICS, the investors would not be able to benefit from protection in cases where there is a violation of an obligation by Member States. The only protection the foreign investors would have would be the domestic and EU law provisions settled to protect investors. In this context, the EU has to keep the investment court system in order to ensure the efficiency of CETA. However, an idea that could please the public and still be efficient for foreign investors could be to forget ICS and the “non-direct effect clause”. In that scenario, foreign investors would still be protected but not privileged117.
B. Democratic legitimacy
Currently, international trade and investment law are facing a lot of contestations in the world. The European Union does not escape the rule and the TTIP and CETA were the source of a lot of controversial debates and rejections. One of the main concerns is the democratic legitimacy of free trade agreements. Concerning CETA, the secretive negotiations between non-elected Commissioners and Canada with the influence of lobbyists did not help the case of international investment law in the eyes of the public. A UN independent expert,
114 K. A
CKHURST, S. NATTRAS and E. BROWN, op. cit., p. 59
115 European Commission; Communication, Towards a Comprehensive European International Investment
Policy, COM (2010), Brussels, 7 July 2010
116 L. PUCCIO and R. HARTE, op. cit., p. 12 117 G.-S. S
ZILARD, “ISDS in EU FTIAs. Yes, no, maybe? A domestic enforcement perspective”, European Law
Blog, November 2016, available at http://europeanlawblog.eu/2016/11/15/isds-in-eu-ftias-yes-no-maybe-a-domestic-enforcement-perspective/ (consulted on 7 November 2017)
Zayas, stated that “trade deals prepared and negotiated in secret … have zero democratic legitimacy”118.
It is surprising to see the difference between the law of the EU on paper and its application when negotiating free trade agreements. Democracy is recognized as an objective of EU foreign policy since the Lisbon Treaty. In addition, the EUCFR preamble states that the foundation of the EU is “on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individuals at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice”. However, in practice, the lack of transparency and consideration for citizens has showed the opposite119.
The fact that, at the last minute, the European Commission considered CETA as an “EU-only” agreement is a first step for democracy because it allows national elected parliaments to show their opposition to free trade agreements. However, this is unfortunately too little too late. When Wallonia rejected the signature of CETA every EU Member State said that it was unfair because 3,5 million people were blocking a decision that impacts 500 million people. Even if, the rejection was obviously wider than Wallonia, the regional parliament got accused of holding the European Union and Wallonia did not have any other choice but to sign the agreement. In order to make the agreement more democratically legitimate, an idea could be to open the debate to national parliaments before the trade agreements are negotiated and to give more democratic power to the European Parliament120.
One of the major fears of citizens regarding democracy and CETA is the influence of corporations and lobbyists. In fact, lobbyists were heavily involved during the negotiations of CETA and with regulatory cooperation settled in its provisions, the fear is that this influence will continue. The OECD describes regulatory cooperation as “any agreement or organizational arrangement, formal or informal, between countries (at the bilateral, regional or multilateral level) to promote some form of cooperation in the design, monitoring, enforcement, or ex-post management of regulation, with a view to support the converging and consistency of rules across borders”121. The aim of regulatory cooperation in CETA is to
118 United Nations Human Rights Office of the High Commissioner, “EU / Trade Agreements: UN rights expert
warns against bypassing national parliaments”, United Nations Human Rights Office of the High Commissioner, 24 June 2016, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20174 (consulted on 30 October 2017)
119 E.-U. P
ETERSMANN, “Democratic legitimacy of the CETA and TTIP agreements?”, op. cit., p. 47
120 D. KLEIMANN and G. KÜBEK, “After the ‘CETA drama’, toward a more democratic EU trade policy",
Politico, 12 January 2016, available at
https://www.politico.eu/article/opinion-after-the-ceta-drama-toward-a-more-democratic-eu-trade-policy/ (consulted on 2 November 2017)
121 N. M
reduce differences between Canadian and EU policies in order to facilitate trade and investment. The chapter about regulatory cooperation states that the parties will have to consult a forum before taking a decision composed of research communities, NGOs, business and consumers’ organizations but also, arguably, of stakeholders122. The fear is that, similar to what happened during the negotiations, the corporations’ interests will be put first123. This concern is emphasized by the impact the provisions in NAFTA on regulatory cooperation had. The Canadian Centre for Policy Alternatives stated that “Canada’s experience under NAFTA shows that regulatory cooperation side-lines elected representatives. Instead it promotes murky processes dominated by corporate lobbyists. Making similar processes part of CETA puts a broad range of public health, consumer and environmental regulations on the line - they may be influenced, inhibited, delayed or even blocked by business interests"124.
Those democratic legitimacy issues lead to wonder what could be set out to balance the influence of lobbyists during the negotiations process within the European Union125. With 30.000 lobbyists for 31.000 employees in Brussels, it is undeniable that lobbyists are influencing the European legislation. As a matter of fact, according to some estimation, 75% of the European legislation is influenced by lobbying126 and the practice showed during the years that the influence was rarely on the side of the lambda citizens. With 60% of EP pass held by corporate lobbyists, the interests of corporations are better defended. In addition, even with 40% of EP passes, the influence of NGOs and Labor Unions is not sufficient to balance the power of corporate lobbyists127. For example, during the TTIP negotiations,
122 B. H
OEKMAN, “Fostering Transatlantic Regulatory Cooperation and Gradual Multilateralization”, Journal of
International Economic Law, Oxford, 2015, p. 613
123 E.-U. PETERSMANN, “Transformative Transatlantic Free Trade Agreements without Rights and Remedies of
Citizens?”, op. cit., p. 594
124 S. T
REW, “From NAFTA to CETA : Corporate lobbying through the back door - How regulatory cooperation
serves as lobbyists’ boulevard of influence in NAFTA and CETA”, Canadian Centre for Policy Alternatives, available at https://corporateeurope.org/sites/default/files/en_from-nafta-to-ceta_k2-1_final.pdf (consulted on 3 November 2017)
125 For more information about the lobbying in the European Union: D. C
OEN and J. RICHARDSON, "Lobbying
the European Union: Institutions, Actors and issues", Oxford University Press, 2009, available at
http://docenti.unimc.it/andrea.prontera/teaching/2016/15964/files/business-lobbying-in-the-european-union_chapter_8_reading_week_3
126 I. T
RAYNOR, "30,000 lobbyists and counting: is Brussels under corporate sway?", The Guardian, 8 May 2014,
available at https://www.theguardian.com/world/2014/may/08/lobbyists-european-parliament-brussels-corporate (consulted on 4 January 2018)
127 V. CANN, "Crowding the corridors of power: corporate lobbyists outnumber NGOS and unions in the
European Union by 60%", LobbyFacts, 30 January 2017, available at https://lobbyfacts.eu/articles/30-01-2017/crowding-corridors-power-corporate-lobbyists-outnumber-ngos-and-unions-european (consulted on 4 January 2018)
between January 2012 and February 2014, the European commission's trade department had 528 meetings with corporate lobbyists for 53 meetings with trade unions and NGOs128.
C. Impact of CETA
a. Impact on European Union and Canada citizens
As we previously saw in this chapter, CETA is a trade agreement with questionable necessity and democratic legitimacy so it is normal to think that should at the very least serve the interests of the majority.
However, as previously stated in the first section of chapter 2, CETA has a higher chance of having negative impacts on its citizens than positive ones. As seen in that section, the opinion of EU and Canadian citizens differ from the opinions of the parties. In fact, CETA was described by Canada's prime minister as the “biggest deal our country has ever made” ensuring that Canadians will be the first beneficiaries of it129 however, since the beginning, people from both sides of the Atlantic130 have expressed fear that CETA will place the interests of corporations before environmental, public health and human rights concerns 131. The rejection from civil societies is massive. For example, a movement put in place by the Trade Justice Network, STOP CETA, says that CETA is a threat to democracy132. Another example is the report of November 2014 of more than twenty EU civil societies called “CETA: Trading away democracy”133 with a title that speaks for itself.
The differences of opinion can be explained by the fact that the parties have to defend their agreement. Duchesne and Morin supported that theory by saying that the gains from CETA were so uncertain that it was better for the EU and Canada in order to avoid claims
128 P. GALLAGHER, "TTIP deal: Business lobbyists dominate talks at expense of trade unions and NGOs", The
Independent, 27 August 2015, available at
http://www.independent.co.uk/news/world/europe/ttip-deal-business-lobbyists-dominate-talks-at-expense-of-trade-unions-and-ngos-10475073.html (consulted on 4 January 2018)
129 F. M
CKENZIE, op. cit., p. 233
130 S. TREW, “Correcting the Democratic deficit in the CETA negotiations: Civil society engagement in the
provinces, municipalities and Europe”, op. cit., p. 569
131 C. DEBLOCK and M. RIOUX, op. cit., p. 54 132 F. M
CKENZIE, op. cit., p. 234
133 Corporate Europe Observatory, “Le CETA contre l’intérêt général : Rapport ‘CETA: marchander la
démocratie’”, 21 September 2016, Corporate Europe Observatory, available at
https://corporateeurope.org/fr/pressreleases/2016/09/le-ceta-contre-lint-r-t-g-n-ral-rapport-ceta-marchander-la-d-mocratie (consulted on 4 November 2017)
