Canada: All Systems Are Go: Canada And The EU Have Taken The Necessary Steps For Provisional Implementation Of CETA

On September 7, 2017, the Canadian Governor-in-Council published in the Canada Gazette an Order-in-Council that sets the date of the provisional implementation of the Canada-European Union Comprehensive Economic and Trade Agreement (the “Canada-EU CETA”) to be September 21, 2017.  SI/2017–47 “Order fixing September 21, 2017 as the Day on which the Canada-European Union Comprehensive Economic and Trade Agreement Comes into Force” also states which provisions of the Canada-EU CETA will not be provisionally implemented. This Order-in-Council is the final step in the Canadian process that indicates the Canada-EU CETA will be provisionally implemented.

On September 16, 2017, the European Union published its official notice in the in the Official Journal of the European Union.  The 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 also sets the provisional implementation date of the Canada-EU CETA on September 21, 2017 and states which provisions of the Canada-EU CETA will not be provisionally implemented. This Notice is the final step in the EU process that indicates the Canada-EU CETA will be provisionally implemented.

Provisional implementation will cover most of the Canada-EU CETA.  With respect to trade in goods, all tariff eliminations and tariff reductions and quotas will be provisionally implemented.  With respect to trade in services, all liberalization of trade in services will be provisionally implemented (except for parts of Chapter 13 relating to financial services (in particular, Article 13.2, paragraphs 2 and 3, Articles 13.3, 13.4, 13.19 and 13.21).  Certain parts of the Investment Chapter (Chapter 8) will be provisionally implemented  (in particular, Articles 8.1-8.8, 8.13, 8.15 and 8.16) and the rest of Chapter 8 will not be provisionally implemented.  Articles 20.12 (Camcording), 27.3 (Administrative Proceedings) and 27.4 (Review and Appeal), and part of Article 28.7 (Taxation filter for investment dispute settlement mechanism) will not be provisionally implemented. Finally, some elements (unspecified) of Chapters 22, 23 and 24 will not be provisionally implemented to respect to allocation of competencies between the EU and Members states.

These official documents follow formal ratification by the European Union on February 15, 2017 and the Canadian Governor General formally ratifying the Canada-EU CETA on May 16, 2017 by granting Royal Assent to the Canada-European Union Comprehensive Economic and Trade Agreement Implementation Act.  Ratification by each EU country is not necessary for provisional implementation.  So far, only Denmark, the Czech Republic, Latvia, Malta, and Spain have ratified the full Canada-EU CETA.  The EU considers the Canada-EU CETA to be a mixed agreement, meaning that the EU Parliament can ratify certain provisions and the EU member states must ratify certain provisions.  The provisions that have not been provisionally implemented are the provisions that the EU member states must ratify.  In other words, we are good to go for most of the Canada-EU CETA.

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