The Italian Government’s position on the negotiation and approval of CETA

Throughout 2016, the Italian Government was called upon on several occasions to express its position on the negotiation and approval of the Comprehensive Economic and Trade Agreement between Canada and the EU (CETA). In May 2016, the Government – in contrast with the wide majority of the other EU Member States – announced its willingness to consider CETA as a “EU only agreement”, falling within the sole competence of the EU as part of its commercial policy. On the contrary, in July 2016 the EU Commission decided to qualify CETA as a “mixed agreement”, subject to the approval of each of the national parliaments of the EU Member States. The Government’s view on the matter was expressed in particular on the following occasions:

SENATE OF THE REPUBLIC, XVII LEGISLATURE, 646th MEETING, 27 JUNE 2016.

On 27 June 2016, the Senate of the Republic rejected two parliamentary motions aimed at involving the national parliaments of EU Member States in the process of approval of CETA. The first motion reads as follows:

The Senate,

[…]

Compels the Government

[…]

to work towards a thorough examination of and a debate on CETA – the economic and commercial global agreement between the EU and Canada – within national parliaments, taking into account contributions from civil society organisations, trade unions and different stakeholders, to the aim of reducing the democratic deficit which often characterizes such kind of decisions.

The second motion reads as follows:

The Senate,

[…]

Compels the Prime Minister and the Government to promote in every European forum the necessity of a fully-fledged involvement of the parliaments of EU Member States in the phase of approval of the commercial agreements known as TTIP and CETA.

(The full Italian version of these statements can be downloaded here)

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 646th MEETING, 1 JULY 2016.

On 1 July 2016, before the EU Commission announced its decision, the Undersecretary of State for Economic Development, Mr. Ivan Scalfarotto, reported to the Chamber of Deputies on the Government’s position on the involvement of national parliaments in the process of accession to and ratification of CETA. He explained the Government’s stand on the interpretation of CETA as a “EU only agreement” by stating the following:

[…]

Should the agreement be considered of a mixed nature, any decision regarding CETA would have to be taken unanimously by Member States and the agreement would have to be ratified according to the mechanisms provided by each constitutional system. The practical outcome of such an option is self-evident: waiting for national ratifications, the provisional application that would take place would end up being very narrow as it would have to reflect different national sensitivities. Moreover, each national parliament alone could decide not to ratify and in such case CETA would never enter into force. It is exactly for these reasons, and in light of the strategic importance of the agreement, that on 28 May the Commissioner for Trade, Ms. Cecilia Malmström, and the President of the EU Commission, Mr. Juncker, have been informed of the fact that, in principle, pending the decision of the ECJ, we are open to the idea of treating CETA as a “EU only agreement” – thus as an agreement within the sole competence of the EU – and not as a “mixed agreement”, therefore considering the process of approval as falling within the competence of the Council of the EU and the EU parliament elected by universal suffrage. Such position is supported and justified by the fact that, according to the Lisbon Treaty, the EU has exclusive competence over commercial policy.

He also advanced the claim that national parliaments could be involved in a later phase, during the implementation process of the agreement. In particular, he stated the following:

[…]

It is just worth recalling that the proposed interpretation by no means implies putting aside the proper function of national parliaments, which would be able, within their full competences, to intervene in the phase of implementation of the agreement.

(The full Italian version of this statement can be downloaded here)

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 648th MEETING, 6 JULY 2016.

On 6 July 2016, while reporting to the Chamber of Deputies on the system of international jurisdiction envisaged in the context of the negotiations on the Transatlantic Trade and Investment Partnership (TTIP), the Minister of Economic Development, Mr. Carlo Calenda, submitted that a broad understanding of the State’s right to regulate had been transposed into CETA and that the International Court System provided by such treaty had been conceived of as a system of jurisdiction rather than a system of private arbitration. In particular, he stated the following:

[…]

Two are the issues at stake: on the one hand, the possible interference with the State’s right to regulate; on the other hand, the need to prevent the rise of conflicts of interests (since arbitrators are private individuals), and most of all the need not to favour the investor by letting him/her step from one legislation – the national one – to, let’s call it like that, the international arbitration, thus benefiting from a privileged treatment.

He then added:

The core issue is that the tribunal would and could only intervene in cases of manifest violations of the investor’s fair and equitable treatment, so basically in cases of discrimination of the international investor. This will allow to narrow every – let’s call it like that – excess of litigation, which has emerged particularly in the last few years and might interfere with the right to regulate. Therefore, the cases the tribunal will focus on will be indirect expropriation, illegitimate nationalisation (lacking adequate compensation) and failure to issue a licence to a foreign investor in cases where licences have been issued to domestic investors. The States’ right to regulate the protection of fundamental rights without any interference is wholly guaranteed, as in such field it is not possible to call into question the full legitimacy of the State’s action. It is worth underlining that the first case of application of this approach – which ought to turn into a new international standard for Europe, being an indispensable (and I repeat, indispensable) feature of the TTIP deal – has been transposed into the agreement with Canada, an agreement which has been concluded and will now face the process of ratification.

(The full Italian version of this statement can be downloaded here)

SENATE OF THE REPUBLIC, XVII LEGISLATURE, 685th MEETING, 22 SEPTEMBER 2016.

On 22 September 2016, during a question time taking place at the Senate of the Republic, Mr. Calenda highlighted the difference between TTIP and CETA by stating the following:

[…]

This brings me to talk about CETA, an agreement of a completely different nature. We do have access to the text of CETA and we do know what it contains: to begin with, for the first time we have the recognition of geographical indications by an Anglo-Saxon country. Parma ham used to get into Canada as “original prosciutto”, while now it can enter as “prosciutto di Parma” and this applies to several other categories. Furthermore, in this case we have access to procurement – as opposed to what is happening with the US. In the view of all European actors, CETA has become a positive model agreement.

He also referred back to the Government’s position on the framing of CETA as a “EU only agreement”, and expressed concerns about the final choice of the EU Commission for a “mixed agreement” model. More specifically, he stated the following:

[…]

As to the Italian Government’s position, in our view CETA’s perimeter falls within the competence of the EU as commercial policy, and the reason is that if we face negotiations as EU we weigh X, if we negotiate as single countries we weigh less than X. The Italian Government used to think – and did follow this conviction – that the approval could be the one provided for the so-called “EU only” treaties, those falling within the competence of the EU. This is not an antidemocratic procedure, as it provides for the involvement of the Council and the EU Parliament – which is a democratic organ. The Commission, pushed by Member States, decided to bring the agreement forward as a mixed one, subject to national ratification, in the process we already described: it is a dangerous process, because no one knows its possible outcomes. So far, it is still not clear what happens legally if a single country fails to ratify the agreement. Provisional application would cover the part of the treaty that is undoubtedly EU only, as has been done with all other agreements.

The important aspect in this case is how we can turn up at the negotiations with this disadvantageous situation that we created – having very low barriers in countries we are interested in entering (indeed we are all economies relying heavily on export) – if we do not negotiate as a critical mass, and most of all if our counterparts know that, once we have negotiated, the Walloon Parliament might turn the agreement down for each and every one of us. This is a question we have to ask ourselves. The Italian Government took a highly European stand on the issue and we cannot be pro-Europe every other day – just paying lip service to it, and then not applying it in practice.

The full Italian version of this statement can be downloaded here.

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