CETA’s signature: 38 statements, a joint interpretative instrument and an uncertain future

On October 30th, the EU and Canada finally signed the long-awaited Comprehensive and Economic and Trade Agreement (CETA), which had been in limbo for almost two weeks because the Belgian region of Wallonia refused to give its consent to the federal Belgian government to sign the deal. CETA was classified as a mixed agreement (a decision whose wisdom we dispute) and therefore requires not only the EU’s signature and ratification, but also those of the 28 member states. After a week full of political suspense and profiling, late-night negotiations at intra-Belgium level and informal contacts with and diplomatic pressure from the different EU institutions, Belgium’s Prime Minister Charles Michel could finally announce on Thursday that an agreement was reached with the Walloon government and that Belgium was able to sign CETA. In order the get the Walloons on board, an intra-Belgium Statement and a Joint Interpretive Instrument was negotiated. These documents were approved at the last-minute by COREPER on Thursday night and on Friday the Council approved, by fast-track writing procedure, the Council Decisions for signature and provisional application of CETA. This paved the way for the agreement’s signature at the EU-Canada Summit on 30 October, referred to by President of the European Council Donald Tusk as “the most highly anticipated summit in recent memory”. In addition to the Joint Interpretative Declaration (which has been agreed with the Canadian authorities), no less than 38(!) statements or declarations (including the intra-Belgium Statement) have been made by EU member states or institutions. The Joint Interpretative Instrument was already drafted earlier, together with the Canadian authorities, to accommodate some of the concerns of the CETA opponents. It specifies how several provisions of CETA should be interpreted (mainly related to the agreement’s Investment Court System (ICS)), but it does not alter the text of the agreement. Nevertheless, it is a legally binding document according to Article 31 Vienna Convention on the Law of Treaties. The only innovative element is that the EU and Canada have now agreed “to begin immediately further work on a code of conduct to further ensure the impartiality of the members of the Tribunals”, including on the method and level of their remuneration and the process for their selection. This task should be concluded before the entry into force of CETA. In addition to the Joint Interpretative Instrument, EU member states and institutions unilaterally adopted 38 statements and declarations on CETA, which will be entered into the Council minutes. These statements or declarations do not give a binding interpretation on CETA, as is done in the Joint Interpretative Instrument, nor do they constitute binding EU acts. Rather, they explain the position of several EU institutions and member states on the conclusion of this agreement. The two most important statements were the one on the ICS issued by the Council and the Commission and the intra-Belgian Declaration. CETA is now finally signed, but it still has to overcome several procedural and political hurdles before it will fully enter into force. On the EU’s side, all 28 member states (involving 38 parliaments) and the Council will need to ratify the agreement. Moreover, the European Parliament will need to give its consent. The fact that 38 statements and a Joint Interpretative Instrument were required in which member states, or different regions in a single member state, are still threatening to exercise their veto rights at the time of concluding the agreement (and possibly even earlier, to terminate its provisional application) does not bode well for a swift ratification process. CETA is now signed, but it must still travel a long and winding road before it reaches full ratification.

 

This is a condensed version of a longer Commentary published on the CEPS website, 31 October 2016. To read the full text, please click here.