EU's Own Survey On Internet Regulations Broken; Please Urge Them Not To Break The Internet Too

from the *sigh* dept

Last week, we wrote about an important survey put online by the EU Commission, asking for feedback on its plans to regulate certain key aspects of the internet. We noted that the survey itself was cumbersome and confusing, and because of that, via the Copia Institute, we set up our own guide to filling out the survey called Don't Wreck The Net. We were a little mocking of the survey, as it does seem a bit silly that the people in charge of potentially putting all sorts of regulations on the internet... have a poorly designed and confusing survey (including the fact that depending on how you answer certain questions, the survey will appear quite different for you than it might for others). However, to some extent, we get it: government bureaucracies have some limitations on what technologies they can make use of.

Thankfully, many of you went to the Don't Wreck the Net website and, from there, did complete the EU Commission's survey. However we started receiving reports that after filling out this long and cumbersome survey, people were submitting it only to get the submission "rejected" with the following error message: Worried about this, I reached out to the European Commission, and got back the following response, admitting that their survey had an absolutely ridiculous bug:

The problem comes from an incorrect address the participants are using. Please make sure that they use the following link:

https://ec.europa.eu/eusurvey/runner/Platforms

It is very important that there is no slash ("/") at the end of the link. Please inform your users and ask them to double check the address before clicking on Submit. As a workaround it is also possible to first click on "Save as draft" and then submit the survey afterwards.

We apologize for the problem. The bug will be fixed in the next version of EUSurvey.

We looked, and indeed, in some of our links, we included that trailing slash. But here's the thing: SO DID THE EU. On its own official page about the survey, the only link on that page went to the URL with the slash on the end that breaks their own survey.

In other words, if you went to the EU's own website and followed the only official link to the survey, and then filled it out and submitted it... you would get the error page.

I alerted the Commission to this and they have since fixed the link on their own website... but still.

First: it's absolutely ridiculous that the survey would not work with the trailing slash. Second, it's ridiculous that even though it would not work, it still displayed the survey and let people fill out the whole thing only to dump the results at the end. Third, it's a complete travesty that they linked to this very same wrong link in their own consultation page, potentially leading many, many people to fill out this long and confusing survey and have the results dumped into the garbage can.

I've spoken to a few people at the EU Commission about this, and I get the feeling that they are (reasonably) embarrassed and apologetic about this, but they have not said anything publicly at all, nor have they publicly explained to people why their survey results may not have been submitted. I have asked if they would consider extending the survey a few more weeks, given this mistake on their own platform, but I have not heard a response yet.

All that is to say: as much as it pains me to tell you this, if you filled out the survey as requested last time, only to get a "forbidden" error at the end, please do so again using the proper links (and make sure you "save" your draft first). Multiple people at the EU Commission that I've spoken to insist that they really need and want to hear from as many voices on this as possible (and no, you don't need to be European). They insist that they really do want to hear all sides, and don't want to end up with policies that will create real problems for the internet. So it's super important that you fill out their survey -- which I hope is actually working now.

So, please, let the EU Commission know that they shouldn't wreck the internet.

Filed Under: broken, competition, don't wreck the net, eu, eu commission, innovation, intermediary liability, privacy, survey

Keep The Internet Competitive And Innovative: Speak Out Now

from the here's-your-chance dept

There are only two weeks left to submit your comments. Act soon to ensure your voice is heard!

The European Commission needs our help. As the EC considers the future of innovation policy, they need — and want — to hear from you. To make sure the Commission doesn’t create any unintended harmful consequences, they have asked for our opinion, and the opinion of anyone that could and would be impacted by changes to internet regulation in the European Union. The Copia Institute has set up a great site for gathering this information: Don't Wreck The Net. Take a moment and share your thoughts. In the meantime, here are some of ours.

The Application Developers Alliance is a membership organization representing nearly 200 companies and over 60,000 developers — many of them small companies and entrepreneurs. It is these companies that drive innovation and grow the economy. But like you, they have neither the time nor the money to lobby the government, and we want to make sure you are aware of how this consultation could end up impacting these businesses, innovation generally, and you specifically.

Many policymakers (and reporters) seem to focus on the big players and how different types of internet regulation would impact them, but we are much more concerned about the impact on everyone else. Let's face it, the largest companies have the resources and legal experts to deal with whatever regulatory burden is put on their shoulders, but the early stage companies and small app developers do not. Here are four key reasons why we think it is important to tell European regulators Don't Wreck The Net:

1. More competition: The EU Commission wants to see more competition in the market, but creating more regulations and red tape will not achieve that. As noted above, these regulations are only likely to entrench the large players who have the resources to deal with those burdens. Small upstarts could end up going out of business or not get started in the first place. In order to gain more competition, we need to tell the Commission not to add an extra regulatory burden.
2. More innovation: The history of technological progress — especially on the internet — is driven by "permissionless innovation." So much innovation happens because a small group of people (or even an individual!) has a great idea and can just run with it, without having to "get approval." Increasing regulation, whether on purpose or not, often results in having to make sure your innovation "gets permission" in the form of compliance — which might also limit certain kinds of useful innovations.
3. Forced user monitoring isn't helpful for anyone: Like you, we are concerned about user privacy and we take this issue very seriously. We want to ensure that users are protected and we do not want proposed legislation to require much more monitoring of user behaviour. Not only would this require massive resources for small developers, it would put user privacy at risk.
4. Freedom of speech: Many of the regulatory suggestions on the table could inadvertently hold back free expression, and move the internet to more of a "broadcast" model, with only approved content going through. We believe in freedom of speech and how that helps power the internet and the apps that our members develop. The internet and mobile networks are, at their heart, communications platforms. They have grown and developed because they are tools for free expression and limiting this fundamental right would not only hold back innovation, but everyone's ability to communicate as well.

For those reasons and more, we support the Copia Institute's campaign to tell the EU Commission Don't Wreck The Net, and we recommend you check out Copia's Survey Survival Guide to help take you through the consultation. The form can seem complicated, but we believe it is worth letting the EU know how you feel about this and its impact on future innovations.

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This post is sponsored by the Application Developers Alliance in support of Don't Wreck The Net

Filed Under: competition, don't wreck the net, eu, eu commission, free speech, innovation, intermediary liability, platforms, privacy

This Survey Sucks, And The Internet Needs You To Fill It Out

from the dont-wreck-the-net dept

Today, we're launching a new initiative from our think-tank, The Copia Institute. The European Commission is holding a public consultation on new regulations for the internet, and the only way to send comments is through a painfully long and oblique online survey. Unfortunately, thanks to those five pages of small print and confusing questions, most people don't seem to have realized just how big a deal this consultation is — and it only runs until December 30th.

The new regulations that are being considered include a long list of things that we've fought hard against here at Techdirt. In general, it all focuses on "intermediary liability" — the dismantling of safe harbors and creation of new regulations that hold online services accountable for the actions of their users. Apart from the obvious common sense objection that this is clearly putting the blame in the wrong place, we know it has all sorts of negative effects: it encourages services to spy on the actions of their users, it turns providers into de facto judges and squeezes out free speech safeguards like fair use, it leads to filtering and takedown systems that inevitably target lots of legitimate content... the list, as our readers know, goes on and on. We discussed the issue in detail last week on our podcast.

This isn't just an issue for Europe. Currently, the EU's rules around intermediary liability are largely in line with the safe harbor approach in the US, and changing this could impact every online service that has European users, everyone who wants to share content internationally or make use of services from the EU, and generally everyone who cares about innovation, privacy, competition and free speech on the global internet. So we're asking everyone to brave the nightmarish online survey and speak up against these new regulations, and to help we've created the Don't Wreck The Net campaign and survey survival guide. There we outline the core issues at stake, and offer some help orienting yourself in the survey and understanding what the bureaucratically-worded questions are getting at.

Again, it's really important that people respond to this public consultation. Not only is the survey a pain, the details strongly indicate that the European Commission really wants to enact some new regulations — often, it only gives you space for additional comment when you are criticizing the existing framework, but not when you are defending it. You can bet that lots of folks from the copyright industries have submitted their responses, no doubt calling for robust new notice-and-staydown rules and proactive monitoring requirements. This can't be the only message the Commission hears.

Open up the campaign page, make use of our resources, and tell EU lawmakers not to wreck the net »

Filed Under: eu, eu commission, intermediary liability, survey

Pirate Party MEP Julia Reda: EU Preparing 'Frontal Attack On The Hyperlink'

from the propping-up-publishing-dinosaurs dept

Back in January of this year, we wrote about a remarkable report proposing a number of major changes to EU copyright law. Part of an extremely long-drawn out process that aims to update the current 2001 copyright directive, the document was written by the sole Pirate Party MEP in the European Parliament, Julia Reda. In the short time she's been an MEP -- she was only elected in 2014 -- she's emerged as the European Parliament's leading expert on copyright, which means it's always worth taking her warnings in this area very seriously. Earlier this year, Techdirt noted that Reda was worried about moves to restrict outdoor photography in the EU. Now she's picked up something even more disturbing after studying a draft version of the European Commission's imminent communication on copyright reform, which was leaked to the IPKat blog. According to her interpretation of this document:

the Commission is considering putting the simple act of linking to content under copyright protection. This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.

Specifically:

the Commission bemoans a lack of clarity about which actions on the Internet need a permission and which ones do not: in legal terms, they put forward the question when something is an 'act of communication to the public'.

This is a reference to a ruling of the European Court of Justice in the Svensson case. While on one hand the judges established that the simple act of linking to publicly available content is no copyright infringement, because it does not reach a new public, a few questions were left open by this ruling, however: For example when exactly content can be seen as accessible by the public and how e.g. links surpassing paywalls are to be treated.

What worries Reda is that the European Commission may try to introduce ancillary copyright -- aka a "Google tax" -- in the EU under the guise of "clearing up" the questions left unanswered by the Svensson case. As she notes, and Techdirt has tracked for some time, every attempt to bring in ancillary copyright in Europe has been an abysmal failure. Bringing in an EU-wide Google tax in a misguided attempt to prop up publishers that still haven't figured out how to work with, rather than against, the Internet, would be disastrous. Maybe Reda is reading more into the leaked document than is warranted, but it's certainly worth being alert to this possibility when the European Commission releases its official version of the document on 9 December, and making it quite clear before then that the idea is a complete non-starter.

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Filed Under: ancillary copyright, copyright, eu, eu commission, julia reda, links

EU Study Confirms: Hollywood's Site Blocking Campaign Is A Total Failure

from the well,-duh dept

If you go all the way back to when the RIAA shut down Napster, you may recall that within just a short while, Gnutella launched, providing a more distributed system that became the core of a number of file sharing programs, which ended up growing much, much larger than Napster. It's the classic hydra situation: you cut off one head, and eight more (or even more than that) come back in return. It's a message that has been obvious since the days of Napster... and yet it's one that the legacy entertainment industry and its friendly politicians still can't seem to grasp. It's why we've always said that the industry would have been so much better off looking for ways to embrace and work with the leading providers in the space, rather than shutting them down.

But, clearly, they don't get it. As the Sony email leaks showed, "site blocking" is still considered a top priority for Hollywood, even though it doesn't take a genius to realize that it doesn't work.

Now we can add some more evidence: the European Commission itself decided to do a study looking at what happened after the website kino.to was shut down, and shows that it was a complete failure if the industry was looking to stop people from consuming unauthorized videos. As we've seen before with other site blocking efforts and over-enforcement, there is a very brief impact in decreasing access to infringing works, and a very, very small increase in sending traffic to licensed offerings -- but that only lasts until alternatives come along, usually within weeks.

The overall impact on stopping access to unauthorized videos? Basically none whatsoever. And, by scattering users out to a variety of new sites, it made it even harder for the industry to track what people were doing. In the case of Kino.to, it took all of four weeks for people to find new places to go:

The results from our empirical analysis show that the shutdown of kino.to led to a significant but short-lived decrease in the usage of unlicensed video streaming websites. Unsurprisingly, this effect is particularly large for individuals who were using kino.to previous to its shutdown, with decreases of more than 30% in overall piracy consumption during the four weeks directly following the intervention. We nevertheless observe that consumption of pirated content increases again following the fourth week after the shutdown. This increase is driven both by substitution towards existing alternative unlicensed platforms and by the entry of new platforms following the shutdown.

You can see how this works pretty easily in the following graph. Yes, there's a very brief decline in unauthorized streaming, but then it goes right back to about the same level... and appears to be generally climbing upward: As for helping convince the users to suddenly start paying for content? A tiny, tiny effect that also does not seem to last:

Second, we find limited substitution into consumption of licensed offline video content, proxied by visits to specific types of websites. Our results show that consumers do not increase their visits to websites of movie theaters or to DVD-related Amazon webpages. However, we find a small increase in clicks to licensed online video services (such as Maxdome, Lovefilm, and iTunes) after the shutdown, providing evidence that the intervention was successful in converting part of kino.to's users toward legitimate video consumption. Perhaps more importantly, we also find that heavy kino.to users disproportionately increase their visits to websites of licensed video services. This substitution was nevertheless undermined by the existence of alternative unlicensed streaming websites, which allowed consumers to rapidly transfer their consumption of copyright infringing videos from kino.to to other platforms. In particular, we document a large increase in clicks to the second-most popular platform - movie2k.to - directly after kino.to disappears. Only five weeks after the intervention, we also observe the entry of a new platform - kinoX.to - which manages to quickly appropriate a significant share of the unlicensed video streaming market at the expense of movie2k.to and the other smaller platforms. These results reflect both the high elasticity of supply to the shutdown, and the fact that consumers face little difficulty in switching from one platform to another.

And, the end result is the basic hydra effect, where the audience fragments:

Third, we assess how the shutdown affected the overall structure of the market for unlicensed video streaming. While the market was largely dominated by kino.to before its seizure, the intervention triggered an increase in competition between alternative platforms, ultimately resulting in a much more fragmented market. After the shutdown, the market was evenly split between movie2k.to (the second largest player at the time of the shutown), kinoX.to (kino.to's substitute), and a remainder of 12 websites which cumulatively account for one third of the market. We also observe that concentration of demand decreases after the shutdown, and that consumers diversify their unlicensed movie consumption more as opposed to concentrating it on a single platform.

Again, you can see the impact of this hydra effect right here: Some may argue that this is the intended impact, and that if these sites have a smaller audience it makes them less sustainable, though there's little evidence to support that.

It seems that a much clearer message from this study is what many of us have been saying all along: taking down sites does not change what people want. And if the industry itself is failing to serve the public and music and movie fans in a compelling and convenient manner, then other providers will come in and do it instead, whether or not it's legal. And that's where the audience will go. The more the industry fights against this, the harder it becomes for the legacy industry to figure out ways to work with the leading providers to build a legitimate service. Instead, it just pisses off people and sends them further and further away. That can't be good for business.

Given that, it seems like it would make a hell of a lot more sense for the industry to focus on providing what people want rather than wasting so much time, effort and money into trying to shut down the sites they don't like.

Filed Under: copyright, eu, eu commission, hollywood, hydra, site blocking, streaming
Companies: kino.to, kinox.to, movie2k.to, mpaa

EU Tries To Put Lipstick On The Corporate Sovereignty Pig

from the not-forgetting-the-elephant-in-the-room dept

As Techdirt readers know, corporate sovereignty provisions in both TAFTA/TTIP and, increasingly, TPP, are emerging as one of the biggest stumbling blocks to public acceptance of these deals. The revolt against "investor-state dispute settlement" (ISDS), as corporate sovereignty is more officially known, began earlier for TTIP. Indeed, it was already so strong at the beginning of 2014 that the European Commission had to pull out corporate sovereignty completely from the negotiations, while it held a public consultation on the subject.

The hope was evidently that only lobbyists would bother answering the rather opaque and biased questions that were posed, but that's not how things worked out. An unprecedented 150,000 responses were received, the vast majority of which called for ISDS to be dropped. Despite that clear rejection, the European Commission signalled it would carry on anyway, but promising a "new and improved" version of ISDS.

The difficulty of addressing its flaws is evident from the fact that it is only this week that the EU's Trade Commissioner, Cecilia Malmström, was finally able to unveil a proposal that may prove the last chance for corporate sovereignty in TTIP. Even she is forced to admit that she has "concerns" about ISDS:

I have heard many concerns about dispute settlement between investors and states (ISDS) and the rules included in many of the existing agreements. To a large extent, I share these concerns, especially when it comes to the sometimes unclear definitions that leave too much room for interpretation and possible abuse, and the lack of transparency. I therefore made it one of my priorities to thoroughly modernise the traditional form of ISDS.

The full paper -- which is "without prejudice to the final position of the European Commission on the matters described within" -- runs to 12 pages, and has five basic elements (pdf). These are: a right for governments to regulate; improving the establishment and functioning of arbitral tribunals in order to increase legitimacy of the ISDS system; an appellate mechanism; addressing the relationship between ISDS and domestic courts; and moving towards a multilateral system. Malmström's own summary of the proposal is as follows:

I want to ensure fair treatment for EU investors abroad, but not at the expense of governments' right to regulate. Our new approach ensures that a state can never be forced to change legislation, only to pay fair compensation in cases where the investor is deemed to have been treated unfairly (suffered discrimination or expropriation, for example).

Our new approach also makes arbitral tribunals operate more like traditional courts, with a clear code of conduct for arbitrators. It furthermore guarantees access to an appeal system. And, as a medium term goal, it sets out to work towards the establishment of a permanent multilateral investment court.

Already, there are several analyses of why these don't address the many and deep problems of corporate sovereignty chapters. For example, there's a detailed consideration by Gus Van Harten, entitled "A parade of reforms: the European Commission’s latest proposal for ISDS", where he concludes:

the most recent proposal (a) reflects a move away from essentially fake reforms to something potentially more meaningful but (b) is insufficient to satisfy the minimum criteria of independence, fairness, openness, subsidiarity, and balance, and (c) is not reliable until it is backed by clear language and a negotiating red line for any agreement providing for ISDS.

The analysis by the Seattle to Brussels Network, a large group of development, environment, human rights, women and farmers organisations, trade unions, social movements and research institutes, is, as you might expect, rather more scathing:

The Seattle to Brussels Network is of the opinion that the Commission's proposals do not contribute to any meaningful reform of the ISDS system. They 1) ignore the outcome of the Commission’s own public consultation on the issue; 2) do very little to address the fundamental problems of the ISDS system; 3) would dramatically expand the reach of ISDS, increasing the likelihood of claims against European governments; 4) are misleading in suggesting that the ISDS system was already meaningfully reformed in the recently concluded EU-Canada trade agreement (Comprehensive Economic and Trade Agreement, CETA) and would be significantly further improved in TTIP; and 5) ignore the elephant in the room: that there is no need for ISDS.

That last point is really crucial. According to the European Commission's own figures, even without corporate sovereignty rights, the total US investment in the EU in 2013 was €1.65 trillion; from the EU into the US it was €1.69 trillion. ISDS is an irremediably flawed solution to a problem that doesn't exist.

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Filed Under: cecilia malmstrom, corporate sovereignty, eu, eu commission, isds

European Commission Discovers The Hard Way That Corporate Sovereignty Provisions And EU Laws Are Incompatible

from the we-did-warn-you dept

The US government and European Commission insist that the inclusion of a corporate sovereignty chapter in the TAFTA/TTIP treaty will not in any way diminish the ability of nations to pass laws as they wish. A fascinating case involving an investment in Romania shows why that's just not true. It concerns a state aid scheme instituted by Romania to attract investments in the country, which offered tax breaks or refunds of customs duties on raw materials. The scheme was supposed to remain in place for 10 years. But as part of Romania's accession to the EU, it was required to cancel this scheme, which was regarded by the European Commission as providing unfair state aid. So, obediently, Romania abolished the scheme in 2005, some years earlier than it had promised.

That didn't go down too well with investors. Two of them were able to use the investor-state dispute settlement (ISDS) clauses of a bilateral treaty between Sweden and Romania to sue the latter. Here's what happened next, as described in the European Commission's press release:

An arbitral award of December 2013 found that by revoking an investment incentive scheme in 2005, four years prior to its scheduled expiry in 2009, Romania had infringed a bilateral investment treaty between Romania and Sweden. The arbitral tribunal ordered Romania to compensate the claimants, two investors with Swedish citizenship, for not having benefitted in full from the scheme.

Just part of the price of joining the European Union, you might think. But the European Commission is unhappy that compensation has been paid:

By paying the compensation awarded to the claimants, Romania actually grants them advantages equivalent to those provided for by the abolished aid scheme. The Commission has therefore concluded that this compensation amounts to incompatible state aid and has to be paid back by the beneficiaries.

That is, both the original state aid and the subsequent compensation for not providing that aid for the full term of the agreement are regarded as forbidden under EU law. So the European Commission is ordering Romania somehow to pull back from the Swedish investors the compensation awarded by the ISDS tribunal. Leaving aside the difficulty of doing so, even if Romania manages that, it will then be in breach of the corporate sovereignty tribunal ruling, which could leave it open to further legal action, and further awards against it. On the other hand, if it doesn't rescind the compensation, it will be fined by the European Commission.

This provides a perfect demonstration of how corporate sovereignty provisions in treaties take away the ability of national governments to act freely. Moreover, in this particular case, whatever Romania chooses to do, its people will suffer financially.

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Filed Under: corporate sovereignty, eu, eu commission, isds, romania, sweden, tafta, ttip

Germany's Infamous Copyright Warning Letters May Be Reined In -- In A Few Years' Time

from the always-look-on-the-bright-side dept

Germany has figured on Techdirt on a number of occasions because of the widespread use of warning letters there, sent out in large numbers in connection with alleged copyright infringement, and usually including a demand for money. Back in April 2013, the German digital rights group Digitale Gesellschaft (Digiges) contacted the European Commission in order to draw its attention to the misuse of warning letters, which it said were in contravention of safeguards contained in the relevant European legislation. Here's the background, as explained by the digital rights association EDRi:

Digiges pointed out that in Germany, IPRED [the EU's Intellectual Property Enforcement Directive] had led to a situation which allowed rightsholders to acquire personal data of the users directly from the providers. All they needed for that was the IP-address of an alleged infringer and an application to a court that would order the provider to hand over the requested information. While this option was originally meant to facilitate the realisation of damages and injunctive relief, the whole process in fact became more and more automated over time. The requests from rightsholders usually comprised between 15 and 3 500 IP-addresses at a time. In one single case in October 2009, the number even reached a breathtaking 11 000. Given the fact that the court proceedings in these cases are always summary or expedited ones, it becomes clear that there is hardly any chance for a judge to thoroughly check the validity and accuracy of the "evidence" presented by the rightsholder.

In its letter, Digiges argued that the situation created by the German implementation of IPRED violates EU law, and asked the European Commission to do something about it. It did: in October 2013, it invited representatives to Brussels to explain their case further. After further correspondence with Digiges, more than one and a half years after the initial letter was sent, the Commission has finally decided to take the first step towards an infringement procedure against Germany:

The Commission officially prompted the German government to comment on the German situation around warning letters within ten weeks.

Heady stuff. EDRi points out that any practical effect of the Commission taking up this case is likely to be very slow to arrive:

The German government is expected to delay their answer to the Commission as long as possible. Once it has arrived, the Commission will have 10 weeks to evaluate the government’s reply. An ensuing judicial infringement procedure might take up to two years and will be repeated if the member state in question fails to comply with the ruling of the court.

So, realistically, we are looking at over four years before Germany actually has to do anything serious like changing its law here. But EDRi tries to look on the bright side, concluding its post as follows:

it is still unclear if and when Germany will change its laws facilitating the abuse of warning letters. But an important step towards the first infringement procedure with a net-political twist has been taken.

That's the spirit.

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Filed Under: copyright, copyright trolling, eu commission, extortion, germany, ipred, settlement letters, warning letters

European Commission's Clever Ruse To Introduce Corporate Sovereignty Regardless Of Ratification Votes In EU

from the whatever-happened-to-democracy? dept

Because of the complicated nature of power-sharing in the European Union, some international agreements require the approval of both the European Parliament and of every Member State -- so-called "mixed agreements." It is generally accepted that both the Canada-EU trade agreement (CETA) and TAFTA/TTIP are mixed agreements, and will therefore require a double ratification: by the full European Parliament, and all the EU governments. Indeed, the European Commission has frequently cited this fact to bolster its assertion that both CETA and TAFTA/TTIP are being negotiated democratically, since the European public -- through their representatives -- will have their say in these final votes.

But a disturbing analysis published by Greenpeace on its Austrian pages (original in German), suggests that built into the CETA agreement, which is currently going through a "legal scrub" before being presented for ratification (pdf), are a couple of sections that will allow the European Commission to introduce the corporate sovereignty provisions anyway. According to Article X.06 3(a):

This Agreement shall be provisionally applied from the first day of the month following the date on which the parties have notified each other that their respective relevant procedures have been completed.

This means that CETA would enter into force provisionally as soon as the European Commission and the Canadian government have notified each other that "relevant procedures have been completed." There's no explicit requirement there for those "relevant procedures" to include ratification by the European Parliament or the EU Member States: the European Commission might claim that the "relevant procedures" simply meant things like the legal scrub. One of the provisions of CETA is a deeply-problematic corporate sovereignty chapter, so this too would enter into force at this point, regardless of what national governments might want.

Now suppose that the European Parliament, or one of those Member States, does not ratify CETA, perhaps because of the investor-state dispute settlement (ISDS) mechanism, in which case the entire agreement would fail. But here's what Article X.07 4 says happens in this case:

If the provisional application of this Agreement is terminated and it does not enter into force, a claim may be submitted pursuant to the provisions of this Agreement, regarding any matter arising during the period of the provisional application of this Agreement, pursuant to the rules and procedures established in this Agreement, and provided no more than three (3) years have elapsed since the date of termination of the provisional application.

In other words, even if CETA is rejected in Europe, thus causing the provisional application to be terminated, claims under the ISDS chapter would still be possible up to three years afterwards for investments made during the provisional period. This is no mere theoretical possibility: it is exactly what happened to Russia with the Energy Charter Treaty, which it never ratified, but where an ISDS tribunal made an award of $50 billion against the country because of the treaty's provisional application. What's even more troubling is that the European Commission proposes to add similar clauses to TAFTA/TTIP, as the Greenpeace article notes:

A representative of the European Commission at a press briefing session in Vienna on Tuesday confirmed to Greenpeace that the Commission intends to propose a "provisional application" for TTIP too.

This would be even worse than putting such sections in CETA, because ISDS in TAFTA/TTIP will apply retrospectively to all existing investments, as the negotiating mandate specifies (pdf):

The investment protection chapter of the Agreement should cover a broad range of investors and their investments, intellectual property rights included, whether the investment is made before or after the entry into force of the Agreement.

This would allow corporate sovereignty provisions applying to huge numbers of existing investments to enter into force and remain there for some years even if TTIP were rejected by the European Parliament or one of the national governments. So much for the European Commission's much-vaunted "democracy" -- and another compelling reason to take the ISDS chapter out of both CETA and TAFTA/TTIP.

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Filed Under: ceta, corporate sovereignty, eu commission, eu parliament, isds, ratification, tafta, trade agreements, ttip