Comprehensive Economic and Trade Agreement: We’re publishing „the full set“ of secret CETA-documents (Updates)

This is a condensed English version of the German original.

Over the course of five years, the European Commission and Canada have negotiated the free trade agreement CETA. The „Comprehensive Economic and Trade Agreement“ is a massive project with huge implications for citizens and businesses on both sides of the Atlantic, and can be seen as „beta test“ for the even bigger Transatlantic Trade and Investment Partnership (TTIP) with the USA. However, the public has been completely left out of the process and negotiations.

Only a few weeks ago, the German Federal Ministry for Economic Affairs denied our Freedom of Information request for the documents, on the grounds that public knowledge of the treaty could have „adverse impacts on international relations“.

This is unacceptable. To support an informed public debate, we are publishing the full set of documents:

• 2014-08-05: Cover note INTA – Note For The Attention Of The INTA Committee (1 page)
• 2014-08-05: Cover note TPC – Note For The Attention Of The Trade Policy Committee (1 page)
• 2014-08-05: Consolidated text FINAL – Consolidated CETA Text (512 pages)
• 2014-08-05: CETA Investment and Services Annex I and II Headnotes agreed (7 pages)
• 2014-07-31: Joint procurement offers – Canadian Government Procurement Market Access Offer and EU Final Offer To Canada (112 pages)
• 2014-07-31: Product Specific Rules of Origin plus Annex on Origin Quotas (96 pages)
• 2014-08-04: CND FS market access offer – Canada Financial Services Offer (102 pages)
• 2014-08-04: EU S+I Annex I – EU: Annex 1 – Reservations for Existing Measures and Liberalisation Commitments (171 pages)
• 2014-08-04: EU S+I Annex II – EU: Annex 2 – Reservations for Future Measures (116 pages)
• 2014-08-05: CA S+I Offer Annex I – CETA Services and Investment Reservations – Annex 1 – Schedule of Canada (45 pages)
• 2014-08-05: CA S+I Offer Annex II – CETA Services and Investment Reservations – Annex 2 – Schedule of Canada (26 pages)
• 2014-08-05: PT S+I Offer Annex I – Canada Provincial and Territorial – Annex 1 – Cross Border Trade in Services and Investment (301 pages)
• 2014-08-05: PT S+I Offer Annex II – Canada Provincial and Territorial – Annex 2 – Cross Border Trade in Services and Investment (89 pages)
• 2014-08-01: Canada tariff offer – Canada’s Negative List Tariff Schedule (2 pages)
• 2014-08-01: EU tariff offer – EU tariff offer (10 pages)
• 2014-08-05: Side letters (6 pages)
• 2014-03-24: Canola letter EU (1 page)
• 2014-03-24: Red meat letter EU (2 pages)
• 2014-04-11: Red meat letter Canada (2 pages)

(For easy use, the complete set as a single file: 2014-08-05_CETA-complete.tgz)

The European Commission Directorate-General for Trade describes the documents like this:

Member States will find the full set of corresponding texts attached, including consolidated version of all chapters, annexes, declarations, understandings as well as side letters agreed with Canada. This is the complete outcome on the basis of which the EU and Canada will proceed with the legal scrubbing and translations, before submitting the Agreement to the Council for conclusion.

Annette Grunberg, Policy Officer at DG Trade, last week confirmed to netzpolitik.org, that the CETA documents were sent to EU Member States and the European Parliament:

I can inform you that negotiators have now finished their work and that the text is currently being seen by the EU Member States. The European Parliament also received the text.

However, the public is still left out.

Just yesterday, the European Commission refused a European Citizens‘ Initiative to „Stop TTIP“:

The proposed citizens‘ initiative falls manifestly outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

The Citizens‘ Initiative protests the decision and announces resistance:

„Now the battle really begins,“ said Michael Efler, contact person of the ECI, which currently represents almost 230 organizations from 21 EU countries. „The rejection of the ECI only confirms the Commission’s strategy to exclude citizens and parliaments from the TTIP and CETA negotiations. Instead of paying attention to citizens, it is just lobbyists that are being listened to.“

In its rejection of the ECI, the European Commission claims that the negotiating mandates on TTIP and CETA are not legal acts but internal preparatory acts between EU institutions and therefore not contestable via an ECI.

„The Commission’s view that only acts with an effect on third parties are permissible for an ECI is obviously a legal error. The negotiating mandate of the Commission is a formal decision of the Council and therefore a legal act. If the Commission’s legal opinion had any substance, then in plain English this would mean that Europe’s population is excluded from participation in the development of any kind of international agreements – information that is as frightening as it is scandalous,“ according to Efler.

We have asked Governments, Members of Parliament and NGOs for comment on the documents and will add them to this posting once we receive replies.

Update: Julia Reda, Member of the European Parliament for the Pirate Party, tells netzpolitik.org:

CETA’s chapter on „Intellectual Property Rights“ contains highly contentious provisions. They would freeze the status quo and block any attempts at a progressive copyright reform in the European Union. For example, CETA calls for the provision of legal protection against DRM circumvention – something that currently exists in the EU and that should go to the graveyard of broken ideas, as it can render the right to produce private copies practically useless. Furthermore, CETA details conditions and minimum requirements for ISP liability shields, which ISPs need to follow if they want to be exempt from being liable for copyright infringements of their customers. Depending on the interpretation of the treaty, these conditions may include a three-strike provision. We need to prevent this transfer of law enforcement responsibilities to private companies.

CETA would even come at odds with the current Canadian copyright legislation, as Canada has recently passed an ambitious copyright reform opening up its list of exceptions to better serve the public good. If the Canadian government agrees to CETA, it will have to downgrade this recent achievement.

The new Commissioners will be heard by the European Parliament in a few weeks. I intend to call on the new Commissioner forTrade, Cecilia Malmström, to clear her position on CETA and urge her to take the public interest into higher consideration.

Update 2: Ante Wessels of Vrijschrift (free writing) tells netzpolitik.org:

Modern democratic societies separate powers: legislature, government, and courts. The CETA text for investor-to-state arbitration (investor-to-state dispute settlement, ISDS) concentrates power. The ISDS chapter gives arbitrators the power to review all decisions by legislatures, governments, and courts, but does not observe the separation of powers, lacks basic institutional safeguards of judicial independence, creates perverse incentives, and gives the US an unfair advantage.

On patents: Unlike ACTA, the CETA consolidated text does not contain the right to exclude patents from the scope of the civil enforcement section. All the strong enforcement measures (damages, injunctions, provisional measures) will be available for software patent trolls. FFII’s earlier analysis on this is still valid.