One of the crucial aims of CETA is to harmonise the product norms between the European Union and Canada; these are the 21th century’s largest barriers to trade. Some of the differences in norms are purely formal and counterproductive, like the colour of rear lights on cars. Others are more important, because they affect the democratic choices of European and Canadian people. This is the case for genetically modified food or health standards.

For political and technical reasons, the CETA negotiators decided not to include many standard harmonisations¹: for example, there will be no changes in GMs or hormone-feed beef, for example, despite the Canadian industry’s demands. But what CETA aims at being is a « living agreement » which is both more modest and more ambitious. This means that it sets up a series of procedures to ease the convergence of standards after its entry in to force. This gives rise to the fear that Europe has signed a deal with « backdoors » which will remove their decision-making power from its democratic bodies.

A. Will European norms be modified by CETA?

The problem

Canadian beef producers can praise CETA: it has dramatically enhanced their export possibilities to Europe by increasing the European quotas. But they are still faced with a problem: in Canada, they feed their animals with growth hormones and wash the carcasses with citric acid. Both these practices are strictly forbidden on the other side of the Atlantic, which bars their access to the European market - unless they build separate production lines. They therefore hope that the « living » agreement, CETA, will enable them to solve this problem in the future - a source of considerable worry the European NGOs.

What will CETA change?

CETA introduces two different procedures to facilitate the harmonisation of European and Canadian standards.

• Equivalence

This process will allow European and Canadian officials to consider wether some of their norms are equivalent because they achieve the same level of consumer or environmental protection. This would for example avoid a French car producer having to prove that its seat-belts are compliant with Canadian standards, because they have already been deemed compliant with European standards.

These equivalences will be decided on a case-by-case basis by the administrative authorities which already set and control the norms on both sides of the Atlantic (and not by random officials). But this only applies to existing norms.

• Regulatory cooperation

To limit the divergence of future norms, CETA will also enable Canadian and EU industries’ regulators to work together in the future on harmonizing standards. The goal for the chemical, electric or pharmaceutical industries is to agree on future product standards that would apply in both economies. A hair dryer or a painkiller produced in Canada should also be also easily marketed in the EU and vice versa - something that the industry has long been aiming for².

The Regulatory Cooperation Forum (RCF) of CETA³ will be the heart of this new permanent discussion between regulators, but little is known about how it will work⁴ – except that it will likely be composed of officials designated by the EU and Canada, and co-chaired by a Canadian Deputy Minister and a Director General of the European Commission, who will have a right to veto decisions.

Even though this forum will work on a voluntary basis⁵ and will have no direct power to enact laws or regulations, it stills remains unclear as to wether its recommendations (e.g. changing the GMO approval procedure, adopting a new telecommunication standard) would be binding⁶ – and could by-pass the European institutions.

In its October decision, the German constitutional court warned that the uncertainty of these procedures might affect its internal democratic principles and urged the EU to clarify these. But it also referred to a strong safeguard in CETA, which states that for such decisions to be binding, the « necessary internal requirements and procedures » must be completed⁷. That would imply the approval of the European Commission, the European Parliament or the Member states.

Another problem in regulatory cooperation might be the involvement of « stakeholders and interested parties » allowed by the treaty⁸. For the NGO, Friends of Earth, the RCF will be « open to the direct influence of business lobbyists – the one group with sufficient resources to attend such meetings ». In statements following the signature of CETA, the Canadian food industry has already started to push European authorities to use this new form of cooperation to approve new GMOs .

Even though the business lobbies will have no decision decision-making powers, they might use to their advantage the « early warning system » – a procedure which could give Canadian officials and business lobbies the power to comment on a regulation at very early stages of its elaboration, giving them the « clock power » to rattle their sabre and influence the debate.

B. Will the precautionary principle be challenged?

The problem

A recent report published by the NGO Foodwatch claims that the European precautionary principle is in danger because it does not appear once in CETA. This principle allowing the authorities to take preventive measures to protect health or environment even if the scientific proofs of its danger fall short is indeed much stronger in the EU than in Canada.

Probably exagerated

The precautionary principle is reflected in two provisions of the CETA:

• Concerning environment: « where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. »⁹

• Concerning the protection of workers: « a Party shall not use the lack of full scientific certainty as a reason to postpone cost effective protective measures” in case of “existing or potential hazards or conditions that could reasonably be expected to cause injury or illness. »¹⁰

But it is true this is not included as a general reserve nor is it raised as a higher principle above all other provisions of the CETA. Could this raise a problem when Europe tries to rely on the precautionary principle to refuse an equivalence of norms with Canada, or put Europe at risk under the arbitration mechanism?

No, according to the HEC law professor Alberto Alemanno, who has thoroughly studied this question. According to him, mentioning the precautionary principle would have been useless, because « CETA clearly states Europe and Canada remain free to follow their own methods to determine the appropriate level of protection »¹¹.

This does not mean that decisions contrary to the precautionary principle will never be taken or influenced through CETA. But that if such decisions are made, it will be the European officials’ responsibility, and not under constraint.

Nor does this mean neither that Europe measures will never be challenged. The precautionary principle argument raised by the EU has already been rejected in some WTO disputes, concerning the EU ban on hormone-fed beef or the slowness of its GMO approval. But the CETA will not change anything: it just acknowledges the current WTO situation.

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The following notes are references to the definitive version of CETA’s articles.

¹ The few harmonisations included in CETA are listed in Annex 5-E. The most significant of them is the approval of recyled hot water decontamination of carcasses by the EU.

² Such forums have been existing more informally since 2004.

³ Chapter 21 and article 26.2 (h).

⁴ Under article 21.6 (4), its operational procedures will be defined by the Forum itself during its first meeting.

⁵ Article 21.2 (6).

⁶ Article 26.3 (1).

⁷ Article 26.3 (2).

⁸ Article 21.8.

⁹ Article 24.8.

¹⁰ Article 23.3 (3).

¹¹ Notably article 21.5.