The comments below have been sent by the European Water Movement to the Ecorys TSIA of TiSA study team after the publication of its draft Final Report commissioned by the European Commission.

Preliminary remark: our comments are based on the EU 2^nd revised offer of November 2016 while the Sustainability Impact Assessment is based on the EU revised offer of May 2016.

1/ EU offer for TiSA goes beyond GATS

The European Parliament resolution on TISA asks for “do not go beyond GATS 1994/1995”. The European Commission does not respect this resolution since the EU offer for TiSA goes beyond GATS. For example, Market Access and National Treatment is offered for waste water services (CPC 9401) with GATS modes 1, 2 and 3 by the EC while GATS has only modes 2 and 3. Similar liberalisation for GATS mode 1 for Market Access and National Treatment can be found in other environmental services (CPS 9402-9406, CPC 9409).

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The report highlights the impacts decades of trade agreements have had on global freshwater supplies and on the human rights to water and sanitation. It warns of the dire consequences of a new generation of trade agreements and calls for a drastically different trade regime that would protect people and the environment.

Dear MEP,

We, the undersigned organizations, would like to call on you to vote against the ratification of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, which endangers freshwater resources and water services at both sides of the Atlantic.

After thorough analysis of the CETA text and the Joint Interpretative Instrument, we have found several provisions within the CETA which pose serious threats to watersheds and public water and sanitation services in Canada and the EU:

-- Water is included in CETA despite all the promises that it would be out of negotiations and despite the opinion of the European Parliament in its resolution of 8 September 2015 on the follow-up to the European Citizens’ Initiative Right2Water (2014/2239(INI), no. 22), where the Parliament “calls on the Commission to permanently exclude water and sanitation and wastewater disposal from internal market rules and from any trade agreement”^[1].

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Gus Van Harten
Professor, Osgoode Hall Law School

The last clause of article 1.9 in the CETA is very clear that the Agreement applies to water where put into commercial use. In turn, the investment chapter and ISDS (investor-state dispute settlement, renamed ICS in the final version of CETA) would apply to such situations.

In this framework, one can speculate reasonably about areas of regulation involving water that would by implication subject to the public financial risks and regulatory chill pressures created by the availability of ISDS to foreign owners of water-related assets.

However, it would also be possible to identify existing ISDS cases that related to water such as (a) the regulation, ownership, or operation of public water supplies, especially in circumstances of privatized ownership or operation, and (b) the regulation of water subject to a commercial agreement with a foreign investor. I can think of various cases involving (a) and one involving (b).

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