All credit to the Canadian negotiators who worked on the Canada – E.U. Comprehensive Economic and Trade Agreement (CETA). The CETA was the product of years of preparation and negotiations that began in 2009. The Canadian negotiating team identified Canadian interests and defensive positions and took those to the negotiating rounds to create the Agreement that was ultimately signed with the E.U. Like any other agreement, the CETA was the product of “give and take” in which the concessions that Canada won from the E.U. through the negotiations were bought and paid for with concessions extended by Canada to the E.U. And like any other agreement, the final result was a balance of concessions that was acceptable to both parties.
Having concluded the negotiations, the parties should now be moving full speed toward implementation, but instead Greece is threatening to reject the CETA unless it is amended to specify that only Greece can use the term “Feta” to describe salty, white cheese. Currently, CETA Chapter 22, Article 7.6 provides an exception from the rules providing protection for geographical indications that allows Canadian companies that produced “Feta” cheese (and “Asiago”, “Fontina”, “Gorgonzola” and “Munster” cheese) prior to October 18, 2013 to continue to use these indications for their cheeses. Because of the E.U.’s interest in protecting geographic indicators, it is safe to assume that Canada made concessions to secure the right of its producers to continue to use “Feta” and the other terms, and that this is the only reason why they are listed as exceptions.
Although it is not clear whether Greece could stop the E.U. from implementing the CETA if it presses this point, the real concern is that Greece is attempting to force a unilateral amendment to the CETA to gain a greater advantage after the negotiations were concluded. Use of the term “Feta” was obviously considered during the negotiations and that was the proper time for Greece to raise its concerns with the E.U. The E.U. could have sought an exclusive Greek right to use “Feta” through the negotiations and offered concessions to Canada to obtain this result. This would have changed the balance of concessions between the parties, but it would have been an agreed balance of concessions. If Greece can force a change in the Agreement at this point, the CETA will no longer be balanced. Furthermore, if Greece is successful, will it encourage other E.U. Member States to come forward with their own list of absolutely necessary changes to the Agreement? And if so, will the Canadian Provinces be far behind? Using threats to obtain unilateral amendments to a final agreement is not acceptable because they will ultimately undermine the negotiating process.
The United States adopted Trade Promotion Authority (TPA) to avoid this problem. Although the U.S. Executive Branch negotiates treaties, they have to be approved by Congress. Prior to the introduction of TPA in 1975, Congress could, and did, unilaterally change elements of Agreements already negotiated by the Executive Branch. The result was that U.S. trade partners could not trust that the Executive had the authority to negotiate a binding Agreement that would not subsequently be changed by Congress. As the world moved to more detailed trade negotiations through the GATT rounds in the 1970s, the United States introduced TPA to assure its trade partners that the Executive could negotiate an Agreement that would not be subsequently taken apart by Congress.
TPA is a legislative procedure through which Congress establishes the U.S. position for a specific agreement and sets the process for oversight and consultation during the negotiations. At the conclusion of the negotiations, Congress retains the right to review the Agreement negotiated by the Executive and can decide whether or not to implement the Agreement, but it cannot change elements of the Agreement. TPA has been effective because it facilitates trade agreements and assures U.S. trade partners that final agreements can be considered by Congress in a timely manner and without amendments.
Hopefully, the CETA will be implemented in a timely manner and without amendments so that Canada and the E.U. can start to realize the benefits promised by the Agreement. However, the Greek decision to threaten to block implementation over “Feta” raises a real concern about the E.U.’s ability to negotiate an agreement that binds its Member States. Therefore, before we start another five-year negotiation with the E.U., perhaps it would be worthwhile to press the E.U. to follow the U.S. lead and develop its own form of TPA.
