Negotiations of the EU-Canada agreement continue within the CETA committees. In which the standards of the foods that arrive on our tables are decided behind closed doors. At risk are the rules established in Europe to guard human health and the environment.
The complaint
Foodwatch-a nonprofit organization that advocates for safe, healthy and affordable food for all-after engaging in lengthy correspondence with the European Commission/DG Trade, submitted its formal complaint to the European Ombudsman on 11/30/21. The issues he is asking theEuropean Ombudsman to comment on are two in particular: the lack of transparency in the negotiations and the democratic deficit in the decisions made by the CETA committees.
European citizens should have their right to know what the Commission and Canada are deciding, on such fundamental issues as food standards, recognized. Instead, the opacity of the work done in the committees undermines the trust of civil society, preventing the development of a healthy-and much-needed-public debate on these issues.
In the words of the Commission, ‘Lack of transparency undermines the legitimacy of EU trade policy and public trust. (…) Transparency should apply at all stages of the negotiating cycle from the setting of objectives to the negotiations themselves and during the post-negotiation phase.’ (1). Yet, decisions are made in secret, without public debate and without any democratic control by European or national parliaments.
CETA, 2017 to the present
The trade agreement between Canada and the European Union (CETA, Comprehensive Economic Trade Agreement), is provisionally applied in Europe as of 09/21/2017. The treaty will enter into force definitively only upon ratification by all EU member states, as it has been classified as a ‘mixed’ treaty, meaning that it affects matters of shared competence between the EU and member states. (2)
While the EU and Canada signed the agreement on October 30, 2016, not all member states have ratified it. Italy began the process in 2017 (3), with the passage of a bill that was later withdrawn. Since then, there have been no further attempts at ratification. (4)
Provisional application entails the exclusion from application of certain parts of the agreement (5), such as:
– investment protection,
– Access to the investment market for portfolio investments,
– the controversial judicial system for investment protection, the operation of which has since been defined (6),
– An article on ‘camcording‘ (criminal protection of intellectual property rights).
Nevertheless, the remaining parts are to be considered fully binding, at least until at least one member state decides to notify the Commission of its refusal to ratify the treaty. Critical in particular is the position of Cyprus, which on 7/31/2021 decided not to ratify the agreement in order to protect its traditional products, and in particular the famous Halloumi cheese (7).
1. Lack of transparency
By ratifying CETA, Europe and national parliaments give the executive branch carte blanche on the content of the agreement itself. In fact, since the CETA agreement is not finalized, negotiations go on in committee meetings, whose decisions may develop, implement or amend the agreement and its annexes in its entirety. Some sections even include a blank space, to be filled in later by the committees themselves. This is among other things the case with Section B ofAnnex 5-E, concerning phytosanitary measures.
The committees may recognize standards for sanitary and phytosanitary measures, in which case these cannot then be changed unless a different agreement is reached with Canada. Any unilateral changes could result in sanctions by the CETA Dispute Settlement Panel, and constitute a violation of international law.
Issues of deep public interest, such as pesticide protection standards, genetic engineering standards and food controls, are negotiated in committees. Their decisions can therefore lower the level of European public health controls.
The precautionary principle
Also at issue is the application of the precautionary principle. Exemplary is the ongoing battle over pesticides (8). Lowering European standards on maximum residue levels (MRLs) of pesticides is crucial for Canada, as Canadian agricultural exports-which are worth more than €1.88 billion annually-are severely affected. With the well-founded risk of compromising the quality of food consumed in Europe.
Yet it is impossible to receive detailed information about CETA developments. Some documents (such as the agenda and a brief summary of the meeting) are available online (9), but they are superficial and not sufficient considering the importance of the topics touched upon. Briefing notes, e-mails, internal correspondence, and correspondence with stakeholders-documents that clearly must exist, as well as minutes of various committees and documents and presentations discussed at meetings-have not been made accessible.
The CETA Joint Committee even decided that no detailed account could be taken during the meetings. This is especially serious considering the de facto legislative significance of the decisions made.
2. Democratic deficit
The European Parliament cannot express an opinion on the decisions made by the committees and is only an observer. As far as is known, members of the European Parliament do not even have access to detailed information from CETA committees. Nor is there any mechanism for parliamentary or public accountability of CETA committees for their decisions.
To have diminished the role of Parliament is a sign of a serious democratic deficit that undermines the balance of power among European institutions. Instead, the Parliament should be substantially involved in the implementation of CETA, so as to give the agreement reached democratic recognition.
Foodwatch’s demands
Foodwatch calls for the Commission to act by introducing:
1. Detailed reports to be provided after each meeting, with a list of those present at each meeting and the decisions made. Presentations and other key documentation in understanding the discussion should come in turn. Along with email correspondence, internal and external, and briefing positions.
2. A list of available documentation-immediately accessible or upon request-so as to provide a complete picture of what is being discussed, positions and decisions made.
3. The institutionalization of the involvement of the European Parliament in the decisions of CETA committees. Parliament’s agreement should be mandatory so that important decisions cannot be made behind closed doors.
The previous
TheEuropean Ombudsman has already commented in 2015 on the transparency and accessibility of bilateral agreement negotiations, particularly those related to the Transatlantic Trade and Investment Partnership ( TTIP ) (10). In deciding this case, the Ombudsman affirmed some basic principles in relation to access to records and the duty to ensure transparency and democratic negotiations.
First of all, the arguments of those who would like to keep the documents secret are rejected, as:
– There is no public interest, as far as international relations are concerned, in complying with unreasonable requests from third states not to disclose documents. Otherwise, the international partner would have an unconditional veto on the disclosure of any documents held by EU institutions.
– Arguments that, given the complexity of the issues involved in TTIP, greater transparency could lead to confusion and misunderstanding among citizens are ‘deeply flawed. ‘The only effective way to avoid public confusion and misunderstanding is greater transparency and more proactive efforts to inform public debate.’
Certainly, the Commission can deny access to some documents, at least during certain stages of the negotiation process, in order to effectively negotiate the agreement in the interest of the Union and its citizens. However, any no-disclosure policy must come with adequate justification, and each exception to the fundamental right of public access to documents must be interpreted narrowly. With emphasis on the time period during which access is denied.
If it chooses to deny public access to TTIP documents, the Commission must present specific arguments based on the content of the documents and the context of the negotiations. If the disclosure of a document, at a particularly sensitive time in negotiations, is such that it harms legitimate interests, access to that document can be validly denied during that time period.
The Ombudsman, moreover, ‘recognizes the special democratic responsibility of MEPs to monitor negotiations on behalf of their constituents‘ and identifies the following conduct with which the Commission should comply:
– Provide the necessary explanations when releasing the document, if they believe it may be misinterpreted by the public. It should also engage with those who express legitimate concerns.
– Evaluate whether a TTIP document can be made public as soon as the document in question has been finalized internally and at regular, predetermined intervals thereafter.
– If no exceptional restriction is applied, the document in question should be proactively published by the Commission.
– If, on the other hand, the document cannot be proactively made public, the document reference (and, if possible, its title) should be made public.
– An explanation of why the document cannot be made available must be presented along with the reference to that document.
– Meeting agendas and reports of meetings he holds on TTIP with trade organizations, pressure groups, or NGOs should be proactively published
Interim conclusions
The CETA agreement may open the door to GMOs and cloning, synthetic hormones and veterinary drugs banned in Europe, beef from cattle fed animal meal (11).
The Ombudsman, once again, is tasked with directing the Commission to ensure that minimum guarantees of transparency and democracy are in place. In a European system that seems to have lost sight of protecting its citizens.
Julia Tower
Cover image taken from Trade Justice Network (Canada), http://tradejustice.ca/ceta/
Notes
(1) European Commission. 2015. Trade for All – Towards a more responsible trade and investment policy (europa.eu). https://trade. ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf
(2) The Council adopted a position classifying CETA as having mixed competence of the EU and member states in February 2014; the Foreign Affairs Council reached the same conclusions on May 13, 2016. The Commission therefore decided to propose CETA as a mixed agreement.
(3) Dario Dongo. CETA, the Italian government approves ratification. GIFT(Great Italian Food Trade). 05.06.2017 https://www.greatitalianfoodtrade.it/consum-attori/ceta-il-governo-italiano-approva-la-ratifica/
(4) The Bill ‘Ratification and execution of the following Agreements: (a) Strategic Partnership Agreement between the European Union and its member states, on the one hand, and Canada, on the other hand, done in Brussels on October 30, 2016; (b) Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part, with Annexes, done at Brussels on October 30, 2016, and its Joint Interpretative Instrument‘, was withdrawn on June 21, 2018. https://www.senato.it/leg/18/BGT/Schede/Ddliter/49239.htm
(5) Notice concerning the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22017X0916(02)&rid=1
(6) This is news as of January 29, 2021 . The legitimacy of theInvestment Court System, through which private individuals will be able to challenge existing EU rules and claim damages for the hindrance to their businesses, was recognized by the EU Court of Justice, on 4/30/19 in Opinion 1/17. https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240&title=The-EU-and-Canada-adopt-rules-putting-in-place-the-CETA-investment-court
V. Dario Dongo, Sabrina Bergamini. CETA, Court of Justice’s green light to ‘shredder’ serving ‘Corporations’. GIFT(Great Italian Food Trade). 05.05.2019. https://www.greatitalianfoodtrade.it/ceta-via-libera-della-corte-di-giustizia-al-trita-norme-a-servizio-delle-corporation/
(7) See the response given by Executive Vice-President Valdis Dombrovskis, on behalf of the European Commission, to parliamentary inquiry E-004489/2020 submitted by Emmanuel Maurel (GUE/NGL) https://www.europarl.europa.eu/doceo/document/E-9-2020-004489-ASW_EN.html. The Cypriot government has stated that it will attempt to negotiate some exceptions for the protection of Halloumi before trying again to ratify the agreement.
(8) Dario Dongo, Marta Strinati. CETA, Canada announces battle to Europe over pesticides and GMOs. GIFT(Great Italian Food Trade). 04.07.2019. https://www.greatitalianfoodtrade.it/ceta-il-canada-annuncia-battaglia-alleuropa-su-pesticidi-e-ogm/
(8) Decision in Case OI/10/2014/RA – Transparency of the Transatlantic Trade and Investment Partnership (TTIP) negotiations Case Decision OI/10/2014/RA. Opened Mttipart Tuesday, July 29, 2014, decision dated January 6, 2015. https://www.ombudsman.europa.eu/it/decision/it/58668
(9) See Dario Dongo. Beef with hormones from Canada to the EU. CETA, what guarantees?. GIFT (Great Italian Food Trade). 25.01.2021 https://www.greatitalianfoodtrade.it/carni-bovine-con-ormoni-dal-canada-allue-ceta-quali-garanzie/ and Marta Strinati, Dario Dongo. CETA, Canadian meat from cattle fed animal meal. GIFT(Great Italian Food Trade). 06.08.2019 https://www.greatitalianfoodtrade.it/ceta-carne-canadese-da-bovini-nutriti-con-farine-animali/
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
