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Probing the pitfalls for CETA in the ratification process

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While the Canada-European Union "free trade" agreement may be signed on September 25 (or September 26) at a ceremony in Ottawa, the deal will not be done at that point. It will still need to survive what could be a bruising two-year or more ratification process.

The process in the European Union

Embassy reports, "German and Bulgarian envoys say the EU and its 28 member states must determine whether parts of the agreement fall under the competency, or jurisdiction, of the national governments -- and that won't be settled until after the legal review and translation are completed, a process which could take a year to finish. It's an 'open question' as to how CETA will be ratified, said Werner Wnendt, Germany's ambassador to Canada, in an interview with Embassy. 'It's no secret that the European Commission thinks it's not a mixed agreement, so member states need not ratify it. But I think all member states, as far as we know, think that it should be a mixed agreement,' Mr. Wnendt said."

What does competency or mixed agreement mean?

The 2009 Treaty of Lisbon -- which forms the constitutional basis of the European Union -- says that agreements with provisions related to investment protection are a "shared competence" between the European Union and its member states. That would mean that CETA would need to be approved by both the European Parliament and the national legislatures of 28 EU-member countries. While the European Commission -- which negotiated CETA -- claims that the deal is not a mixed agreement, the Council of the European Union -- which meets as different configurations of 28 member country ministers depending on the issue under consideration -- has stated it will not sign the agreement if it is presented as an 'EU-only' agreement.

The Embassy article notes, "Nikolay Milkov, the Bulgarian ambassador to Canada, [says], '[T]he legal experts have to decide about the ratification process. It will be an assessment of the provisions of the agreement... It is highly probable that the 28 parliaments should ratify the agreement. [If] the texts are not affecting the national interest of the countries, it may be subject to ratification just by the European Parliament.' If it's determined that the agreement falls under the sole jurisdiction of the European Union, ratification would likely be a simpler process entailing a simple majority vote by the European Parliament."

For an analysis of the prospects of CETA in the European Parliament, please see Initial results in the European Parliament election.

The process in Canada

The article adds, "Ratification is unlikely to be as complicated a process in Canada, where federal cabinet has the authority to sign the agreement while Parliament is responsible for passing the agreement's enabling legislation."

If this is the case, Mr. Harper may need to be reminded of his April 2006 Throne Speech promise "to submit significant international treaties for votes in Parliament." Given the timeline, it is very likely that a vote on CETA would not place in the current Parliament, but in the post-October 2015 federal election 338-member House of Commons.

In addition, "Matthew Kronby, who headed the federal Trade Law Bureau from 2009 until 2012 and was Canada's lead lawyer in CETA negotiations during that time, said that provinces may need to pass legislation to facilitate the agreement, particularly when it comes to opening up procurement contracts to European companies. 'The provinces may need to pass certain legislation to give effect fully to Canada's commitments in the treaty, and procurement would be the obvious example', he said."

While all the provinces have reportedly gave their approval this summer to the final CETA text, there may be some room to push them too, particularly on procurement. Opportunities for upcoming elections admittedly look bleak -- in September 2014 there will be a provincial election in New Brunswick, in 2015 there will be elections in PEI and the Northwest Territories, and in 2016 in Alberta. But perhaps this is some room to consider given the Globe and Mail reported this week, "Ontario has fought hard to maintain the 'local knowledge' provision: The province even gained a special exemption in Canada's free-trade deal with the European Union that allows Infrastructure Ontario and municipal governments to give priority to local companies."

And then there is the matter of the numerous municipalities across Canada that passed resolutions either expressing concern about CETA or requesting to be exempted from the deal. There may be opportunities yet to mobilize those municipalities for further action.

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