EPA Ratification, Entry Into Force and other issues: Questions and Answers

Joyce Van-Genderen Naar

The following answers were prepared in response to questions by Havelock Brewster.

1.How long can provisional application of the CARIFORUM-EC EPA last? 

Answer: Provisional Application of the Cotonou Agreement lasted almost three years: signed in 23 June 2000 and officially entered in force 1 April 2003. The ACP countries completed the ratification procedure in time, the delay was on the side of the EU Member States, Holland and Belgium were the last  to ratify.   

Furthermore : it is not known if the ratification procedure of the First Revision of the Cotonou Agreement (revised in 2005) has been completed.  

2.  Exactly how many CF States have notified completion of the procedures (ratification for short)?

Answer: No one in Brussels can (or will) answer this question. The ACP Secretariat said that they keep the data for internal use; a contact person in the EU Council tried to get some answers this week but no one could tell her; she found some data from 2009 not updated; in June 2010 a Brussels insider said that 2 CF countries has ratified the CF EC EPA: the DR and Antigua and Barbuda. No data about the EU Member States. 

3. What is required for (final) entry into force so far as CF is concerned? Ratification by a certain number of States? By all States?

Answer: Art. 243 CF EC EPA says the Parties, meaning all parties (15 CF States and , 27 EU Member States). Note: in some CF States such as Suriname and in all EU member states parliaments has to approve the CF EC EPA. 

4. What is required for (final) entry into force so far as CF is concerned?

Answer: See article 243 CF EC EPA: 

“1. This Agreement shall enter into force the first day of the month following that in which the Parties have notified each other of the completion of the procedures necessary for this purpose.

“2. Notifications shall be sent to the Secretary General of the Council of the European Union, who shall be the depository of this Agreement.

“3. Pending entry into force of the Agreement, the European Community and the Signatory CARIFORUM States shall agree to provisionally apply the Agreement, in full or in part. This may be effected by provisional application pursuant to the laws of a signatory or by ratification of the Agreement. Provisional application shall be notified to the depositary. The Agreement shall be applied provisionally ten (10) days after the latter of the receipt of notification of provisional application from the European Community or from all the Signatory CARIFORUM States. Provisional application shall be effected as soon as possible, but no later than 31 October 2008.

“4. Notwithstanding paragraph 3, the European Community and Signatory CARIFORUM States may take steps to apply the Agreement, before provisional application, to the extent feasible.

5. If a sub-set of country ratifications can bring the Agreement into force what will be the status of those CF States that have not ratified? Will they continue to access EPA benefits and be subject to EPA disciplines under the provisional application arrangement?

Answer: They will be excluded from the EPA benefits. Some CF countries, who are more and more trading with Brazil, China, Venezuela etc., do not fear that, in contrast to other CF countries that are still depending on the EU.    

6. What is the situation on the EU side?

Answer: Unknown.

7. Has it already completed its ratification procedure?

Answer: NO.

8. If not, what exactly is required ?

Answer: National Parliaments in the EU Member States have to approve the CF EC EPA.

9. Is the EPA status now  in the EU also one of provisional application?

Answer : Yes.

10. If so, when is it expected that the ratification process will be completed?

Answer: Unknown.

11. Would the EU undertake full ratification not knowing what will happen in this respect on the CF side?

Answer: Some EU Member States could oppose the ratification of the CF EC EPA, for example Holland that recently also blocked the EU budget.

12. In regard to Mutual Recognition (MR), once the private sector professional bodies have reached agreement so that a recommendation can be made to the EU, will MR then automatically apply across the board to all EU States, or will there be  built-in "procedures" then to be followed in each EU State? (And, for that matter, in each CF State as well?). 

Answer: MR is provided for in art. 85 CF EC EPA and "describes a lengthy process that has no guaranteed outcome and depends on the ‘encouragement’ of governments." 

Article 85 CF-EC EPA Mutual recognition

1. Nothing in this Title shall prevent the EC Party and the Signatory CARIFORUM States from requiring that natural persons must possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. The Parties shall encourage the relevant professional bodies in their respective territories to jointly develop and provide recommendations on mutual recognition to the CARIFORUMEC Trade and Development Committee, for the purpose of the fulfilment, in whole or in part, by investors and service suppliers of the criteria applied by the EC Party and by the Signatory CARIFORUM States for the authorisation, licensing, operation and certification of investors and service suppliers and, in particular, in the professional services sector.
3. In particular, the Parties shall encourage the relevant professional bodies in their respective territories to start negotiations no later than three years after entry into force of this Agreement in order to jointly develop and provide such recommendations on mutual recognition, among others, in the following disciplines: accounting, architecture, engineering and tourism.
4. On receipt of a recommendation referred to in the preceding paragraph, the CARIFORUM-EC Trade and Development Committee shall, within a reasonable time, review the recommendation with a view to determining whether it is consistent with this Agreement.
5. When, in conformity with the procedure set out in paragraph 2, a recommendation referred to in the same paragraph has been found to be consistent with this Agreement and there is a sufficient level of correspondence between the relevant regulations of the Parties and the Signatory CARIFORUM States, the Parties shall, with a view to implementing that recommendation, negotiate, through their competent authorities, an agreement on mutual recognition of requirements, qualifications, licences and other regulations.
6. Any such agreement shall be in conformity with the relevant provisions of the WTO Agreement and, in particular, Article VII of the GATS.
7. The CARIFORUM-EC Trade and Development Committee shall review progress made in mutual recognition every two years.

Note that the Professional bodies (architecture and engineers) met last week (December 14-18 2010) and agreed that they first have to put into place the national and regional Caribbean level before a MRA with the EU could be recommended or negotiated. Furthermore that there are many requirements in the EU that make it difficult for Caribbean nationals to work as professional on the EU markets. EU nationals have already access to the Caribbean and are involved in consultancies and works in the Caribbean, excluding local professionals in their own national and regional Caribbean markets.

The CF EC Trade and Development Committee will meet in March 2011. 

See also Jane Kelsey Research Paper July 2010: ‘Legal Analysis of Services and Investment in the Cariforum-EC EPA: Lessons for other developing countries’, Pp. 61--62 : Mutual Recognition (MR)  

"Art. 85 CF EC EPA decides that the Parties are required to ‘encourage’ their relevant professional bodies to develop and provide recommendations jointly on mutual recognition that would help investors and Contractual Services Suppliers to meet their various authorisation, licensing, operation and certification requirements. The four disciplines that are given priority are accounting, architecture, engineering and tourism, considered to be the most organised and competitive with the EU.  Their respective bodies must be ‘encouraged’ to begin negotiating such arrangements within three years. Once they reach agreement here are several further steps to the process.

“Art. 85 CF EC EPA decides that the recommendations from the professions are subject to review by the Joint Trade and Development Committee to decide if they are consistent with the CF EC EPA. If they are, and the regulations of the parties are sufficiently similar, the Committee must begin negotiations to implement the recommendations through a Mutual recognition Agreement that covers requirements, be reviewed every two years. Article 85 therefore describes a lengthy process that has no guaranteed outcome and depends on the ‘encouragement’ of governments." 

Jane Kelsey further writes on pag. 62:

“The history of attempts to promote mutual recognition agreements (MRA) has been politically and technically fraught. Hannes Schloemann and Christian Pischas (2008) has suggested to add pressure to conclude such agreements and provide leverage to ensure that discussions at the level of professional associations do occur (!?!). 

Francis and Ulrich emphasized the lack of capacity of various professional bodies in the Caribbean to participate effectively in the process. Most Cariforum states have professional associations, but not all have operational accreditation bodies. There is little convergence of national regulations, which is a pre-requisite fro regional harmonisation.  

Although various model Professional Services Bills have been drafted, few have been adopted I their entirety. Francis and Ullrich predict that the need to develop additional administrative bodies to oversee these arrangements will add to the cost of EPA implementation. Unless and until such agreements are agreed recognition and accreditation will be governed by article 85:1 and the parties schedules. Art. 85:1 affirms the right of states to require the qualifications and/or professional experience necessary for people to delver a service in their territory. (Article 85: 1

1. Nothing in this Title shall prevent the EC Party and the Signatory CARIFORUM States from requiring that natural persons must possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.)

The Headnotes to both parties’ schedules also preserve the right to apply their own non-discriminatory regimes without the need to schedule them. The EU’s Tier 1 and Tier 2 schedules have a horizontal reservation which states that EC Directives on mutual recognition of diploma’s only apply to its nationals, and the right to practice a regulated profession in one state does not confer the right to practice in others. “      

Joyce vG-Naar

December 24, 2010.