Member of the European Parliament Marietje Schaake used harsh words on Wallonia for (temporarily) blocking the signing of the EU-Canada trade agreement (CETA): unbelievable, shameful political opportunism, really incomprehensible. In the press release she also defended the inclusion in CETA of investor-to-state dispute settlement (ISDS), a parallel legal system for multinational investors. In this blog I will argue that Schaake supports an approach that puts at risk democracy and the rule of law. Schaake is the liberal groups’s (ALDE) spokesperson on trade. Wallonia has seriously looked at CETA for years.
The European Commission and Canadian government work on a “Joint Interpretative Declaration” that should convince governments that have doubts about signing the EU-Canada trade agreement (CETA). The Declaration does not change CETA’s text. It does not give a clarification of provisions. Take the first paragraph of the section on Investment Protection:
“CETA includes modern rules on investment that preserve the right of governments to regulate in the public interest including when such regulations affect a foreign investment, while ensuring a high level of protection for investments and providing for fair and transparent dispute resolution. CETA will not result in foreign investors being treated more favourably than domestic investors.”
The study “Trade and Privacy: Complicated Bedfellows? How to achieve data protection-proof free trade agreements” is remarkable. On the one hand it shows, beyond doubt, that the EU fails to sufficiently protect personal data in its trade agreements. On the other hand, one of the safeguards it recommends could leave our personal data more vulnerable. Monique Goyens, Director General of The European Consumer Organisation (BEUC), commented:
It’s unacceptable that the EU’s privacy and data protection rules could be challenged through trade policy.
The European Commission has published its Privacy Shield decision together with a Communication. The Privacy Shield will govern the transatlantic commercial flow of personal data from Europe. The European Commission follows up of its previous Safe Harbour decision that was turned down by the European Court of Justice in its Schrems decision. The core of Privacy Shield is hidden in provision 61:
(61) In the light of the information in this section, the Commission considers that the Principles issued by the U.S. Department of Commerce as such ensure a level of protection of personal data that is essentially equivalent to the one guaranteed by the substantive basic principles laid down in Directive 95/46/EC
Earlier published drafts of the document stated “as a whole”. Unpublished Commission drafts previously unlawfully obtained by Politico.eu and made available to their paid subscribers also contain the “as such” wording.
Investment lawyer Pratyush Nath Upreti argues that investors will be able to use investor-to-state dispute settlement (ISDS) to challenge decisions of the Unified Patent Court (UPC).  Investors could for instance use a Dutch bilateral investment treaty to challenge UPC decisions. Upreti identifies Dutch investment treaties as suitable for treaty shopping and warns for more frivolous IP litigation in investor-to-state dispute settlement. This raises a question. Who would bear the litigation costs and damages awards?
ECORYS has published a draft human rights assessment (sustainability impact assessment) on the trade agreement being negotiated between the EU and the United States (TTIP). Today the Foundation for a Free Information Infrastructure (FFII) has sent an email to ECORYS noting issues regarding intellectual property rights, investor-to-state dispute settlement (ISDS / ICS), data protection, and openness. Footnotes per section, text continues after footnotes. Intellectual property rights
The word “ACTA” does not appear once in the draft report. ACTA analysis has shown that intellectual property rights enforcement may seriously threaten fundamental rights at various levels.
This is the fourth in a series of blogs on the EU-Canada trade agreement (CETA) and data protection. In earlier blogs we saw that under the CETA text Canada can give our personal data related to financial services, transfered to Canada, a lower protection than under the standard set by the Court of Justice of the EU in the Safe Harbour ruling. This is relevant as Canada is a member of the “Five Eyes”, a group of countries committed to (suspicionless) mass surveillance. We also saw that CETA does not allow data protection measures based on a higher data protection standard than agreed in CETA. Textual shortcomings especially become clear in conflict situations.
In February 2016 the European Commission and Canadian government published the final draft text of the EU – Canada trade agreement (CETA). This final draft includes an investment chapter with investor-to-state dispute settlement (ISDS). ISDS is one of the most controversial elements of proposed EU trade agreements as it gives foreign investors the right to challenge government decisions outside local courts. The ISDS section in CETA is based on the 12 November 2015 ISDS proposal for TTIP. According to Germany’s largest association of judges and public prosecutors (original in German) and the European association of judges the adjudicators would not be independent.