The EU trade agreement with Canada (CETA) would undermine the protection of personal data, the Vrijschrift Foundation writes in a letter to Dutch Parliament. On 18 October the EU Council of Ministers will take a decision on signing and provisional application of CETA. Provisional application of CETA would create faits accomplis (the Netherlands did not ratify the agreement with Ukraine, but the provisional application was not terminated). See the Dutch original or the translation below.
Monday, October 3. 2016
To the chairman Foreign Trade committee,
Dear mister De Roon,
On 18 October, the EU Council of Ministers will take a decision on signing and provisional application of the trade agreement with Canada (CETA). In this letter we would like to point out, among other issues, that CETA would undermine the protection personal data.
Canada is a member of the "Five Eyes", a group of countries committed to (suspicionless) mass surveillance. Canada's Communication Security Establishment is allowed to spy on foreigners. 1 A significant portion of Canadian Internet traffic transits through the United States, usually via a city where the NSA has splitter interception facilities. 2
CETA contains commitments with respect to cross-border data flows. The corresponding safeguard allowing the EU to protect personal data is limited by strict conditions. This undermines the European system for the protection of personal data. 3
The commitments with respect to cross-border data flows would fall under provisional application of CETA. After ratification by the European Parliament, the Netherlands would face faits accomplis regarding data flows, a weak related safeguard, and the undermining of the protection of personal data. 4 The Netherlands can prevent this by keeping commitments with respect to cross-border data flows outside of provisional application. If this result can not be attained, the Netherlands can prevent the faits accomplis by not signing CETA. This is necessary in order to protect the European civil rights system.
Regarding arbitration, the idea that the EU is governed so well that there is not much to fear from supranational arbitration has proved unfounded by the decision in the WTO Airbus Case. 5 The damage to the EU could amount to tens of billions of euros. Given the systemic shortcomings of supranational trade and investment enforcement 6 and the additional flaws in the ISDS / ICS proposal, 7 we consider the investment chapter a threat to the rule of law and democracy.
Some member states and the European Commission consider adding a declaration to CETA. 8 This implies a recognition of the shortcomings of CETA; given the seriousness of the shortcomings, a declaration would however not be an adequate solution. Both the cross-border data flows with related inadequate safeguard and the supranational investment section may lead to the EU Court of Justice invalidating CETA later on. To avoid this the Netherlands could in advance ask the Court for an opinion.
Furthermore, CETA will strengthen the position of companies that want to abuse the patent system and will hinder reform of copyright and patent law. 9 The Netherlands may prevent faits accomplis by keeping the intellectual property chapter outside of provisional application (and not just a single article in this chapter, as the proposal now reads).
CETA is a deep integration trade agreement which comes with considerable risks. 10 In contrast, the expected economic benefit from CETA is low. 11 We consider a wide and open debate necessary. Signing CETA would impede such a debate.
on behalf of the Vrijschrift Foundation,
1 See Law, Privacy and Surveillance in Canada in the Post-Snowden Era, editor Michael Geist, page 88 http://www.ruor.uottawa.ca/bitstream/10393/32424/1/9780776621838_WEB.pdf ; "There are accountability gaps in all democracies, but Canada’s accountability gap is particularly pronounced. Alone out of our Five Eyes partners, Canada still does not give any parliamentarians access to secret information.", idem, page 194.
2 idem, page 25
3 http://www.uva.nl/en/news-events/news/uva-news/uva-news/uva-news/content/folder/2016/07/study-identifies-possible-tension-between-eu-data-protection-law-and-free-trade-agreements.html and https://blog.ffii.org/broken-data-protection-in-eu-trade-agreements/#sec-3
4 The agreement with Ukraine demonstrates that provisional application is not terminated if a Member State does not ratify.
7 https://blog.ffii.org/ceta-isds-not-conform-european-parliament-resolution/ and https://www.vrijschrift.org/serendipity/index.php?/archives/201-ISDS-SER-ziet-grotere-rechten-voor-buitenlandse-investeerders-over-het-hoofd.html
10 See also, for instance http://www.mariearena.eu/wp-content/uploads/2016/02/De-Ville-2016-CETA-report-bonne-version.pdf en https://www.tni.org/files/publication-downloads/making-sense-of-ceta_22092016.pdf
11 According to a study by the European Commission and the Canadian Government GDP is expected to grow 0.08% after several years http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_141032.pdf
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