Fumbling towards Ecstasy? Canada as an associate member of the EU

 

Professor Steve Peers, Law School, Royal Holloway, University of London

Photo credit: Martin St-Amant, via Wikipedia Commons

“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

 

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.