Approving CETA requires either a yes or a no vote.The European Commission has proposed CETA as a mixed agreement, meaning that all parliaments in each member state (38 in total) also must approve CETA before it can pass, as there are parts of CETA that fall under member state competence. The Commission did so while continuing to maintain that it sees CETA as an EU-only agreement (meaning that CETA falls under EU only competency) and that its decision was based on a political, rather than legal, basis.
The Commission has divided the passing of CETA into three parts: signing, concluding, and provisional application. Its reasoning for expedited provisional application is that CETA is economically very important and thus it does not want to wait for the ECJ Singapore decision. Under this proposal, the signing and conclusion will be mixed, meaning that it will only be official (legally binding) once the Council, EP and all member state parliaments have agreed. But the provisional application, meaning that CETA would come into force before ratification, would be EU only and would happen after the Council and EP have approved.
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The precautionary principle is a central pillar of EU environmental policy and a legal obligation. This principle is a modern regulatory tool European policy makers use to address scientific uncertainty about a potential risk. Those who want to market a potentially risky product must scientifically prove it is safe, otherwise public authorities can regulate in the face of scientific uncertainty, using criteria of proportionality, non-discrimination and coherence. This principle demonstrates the importance the EU puts on protecting health and the environment, as using precaution can prevent devastation caused by inaction.For example, the EU used the precautionary principle to ban meat containing artificial growth hormones. The WTO ruled against the EU in 1997 after this ban, after complaints from Canada and US, which allow this meat. Afterwards, scientific studies proved the health risks of at least one hormone, proving the EU right its ban. This hormone, oestradiol-17ß, is still allowed in North America.CETA will not change the substance of the precautionary principle as it is found in Article 191 of the Treaty on the Functioning of the European Union. Instead, CETA will have consequences for how it will be applied.CETA makes no explicit mention of the precautionary principle, emphasising instead the weaker WTO rule which allows for precautionary-based regulations only temporarily, while all other regulations must be based on scientific certainty (rather than scientific uncertainty). When CETA makes reference to the precautionary principle, it uses wording from the non-binding Rio Declaration on Environment and Development. This standard is much lower than EU law.
CETA states that the contracting parties will continue to have the right to regulate and ensure protective standards. But just saying this does not offer any legal protection; the parties are bound under international law by what is in CETA. CETA is explicit about the right to regulate in relation to labour and environment only, and not as a generally protected right.
Without the full right to regulate, especially using precaution, CETA threatens to lower EU health and environmental standards. The burden of proof that a product is safe will shift from those who want to introduce the product to the market to public authorities, and thus ultimately the taxpayer. Public authorities in Europe will find themselves constrained from acting until they have proof that something is unsafe, rather than being able to act on precaution.
Food and feed from GM crops must be labeled so that consumers know what they are eating or using. The EU also has statutory measures to protect GMO-free agriculture.Canada does not recognise the precautionary principle as binding in international law. Canada requires no systematic testing or mandatory labeling of GMOs, which it considers a trade barrier, and has brought a WTO complaint regarding EU’s legislation on GMOs.CETA specifically engages the EU and Canada to “promote efficient science-based approval processes for biotechnology products” and uses wording linking regulatory practices to “adverse trade impacts” (Article 25.2.2). With no explicit safeguard of the precautionary principle in CETA, and with legally binding requirements that go in the opposite direction, future GMO regulations will be weakened. Not only can Canada contest EU regulations, like it has done in the past, but corporations and investors will also be able to sue through CETA’s investment court system. Legislative proposals on GMOs must first pass through CETA’s (unelected) regulatory cooperation committees before going to the European Parliament; these committees will use only trade criteria, rather than health and safety considerations, to make their decisions.CETA will weaken EU GM regulation, limiting democratically elected lawmakers’ ability to protect European’s health and environment.
ICS preserves preferential treatment for foreign investors over local businesses. The ICS court is not a real court and the judges are not real judges – they are not permanently assigned to the court and can still act as lawyers for corporate clients, raising serious conflict of interest concerns. ICS also flouts democratic principles and the right for governments and institutions to adopt and enforce laws. The court would have the power to force a state to compensate investors whose profits it believes are constrained by regulation. An indirect ‘chilling effect’ would be to discourage public authorities from enforcing public interest safeguards for fear that they could be challenged.