Council of the European Union could ratify CETA on May 13

Photo: Protesting CETA and the tar sands outside the European Commission in Brussels, Belgium.
The Council of Canadians at a protest outside the European Commission in Brussels.

The Council of the European Union (where national government ministers from each EU country meet to discuss, amend and adopt laws, and coordinate policies), could vote to ratify the Canada-EU Comprehensive Economic and Trade Agreement (CETA) as early as this coming Friday May 13.

The body is also commonly referred to as the Council or the Council of Ministers. The provisional agenda for its Foreign Affairs Council – Trade notes, "(poss.) Council Decision on signature and provisional application of the EU-Canada Comprehensive Economic and Trade Agreement (CETA)."

There is concern that the European Commission (the EU's executive body that negotiated CETA) could present the deal as a "non-mixed" agreement (meaning CETA is considered within the exclusive "competency" or jurisdiction of the EU) and as such the Council could pass CETA with a majority vote (meaning at least 55 per cent of the states – or 16 of the 28 ministers – representing 65 per cent of the European population).

CETA would still have to be voted on in the European Parliament where it faces stiff opposition.

But, as the French daily newspaper Le Monde recently reported, CETA and its controversial investor-state dispute settlement (ISDS) clause could still be "provisionally" applied before the European Parliament vote. The newspaper reports, "If EU ministers agreed at the signing of the CETA on its provisional application, it could come into effect the following month. Such a decision would have serious implications."Notably, CETA has these two provisions:

  • Article X.06-3(a) says: "This Agreement shall be provisionally applied from the first day of the month following the date on which the parties have notified each other that their respective relevant procedures have been completed."
     
  • Article X.07-4 says: "If the provisional application of this Agreement is terminated and it does not enter into force, a claim may be submitted pursuant to the provisions of this Agreement, regarding any matter arising during the period of the provisional application of this Agreement, pursuant to the rules and procedures established in this Agreement, and provided no more than three (3) years have elapsed since the date of termination of the provisional application."

Le Monde concludes, "This means that even if MEPs rejected and buried CETA at the solemn vote expected in the second half of 2016, the arbitration mechanism in it, though criticized for the threat it poses to the right of governments to regulate, could still be applied for three years."

It's not clear what will happen on May 13:

  • If the European Commission chooses to present the deal as a "mixed" agreement (meaning aspects of the agreement involve the "competency" or jurisdiction of EU member states) then the ratification vote by the Council would need unanimous approval (not just 16 of the 28 ministers), which is far less likely to happen.
     
  • While the European Commission has previously indicated it views CETA as a "non-mixed" agreement, European Union trade commissioner Cecilia Malmström has stated, "Even if the power to decide on provisional application lies with the Council, (…) I am ready, when proposing decisions to sign politically important trade agreements which fall under my responsibility, to ask the Council to delay provisional application until the European Parliament has given its consent."

Council of Canadians chairperson Maude Barlow will be visiting several European countries and the European Parliament just weeks in advance of this expected vote.

Further reading
Trudeau appears to choose to stick with ISDS in CETA (Feb. 16, 2016)
Majority of MEPs may oppose Canada-EU 'trade' deal (Aug. 28, 2014)