BILATERAL AGREEMENT BETWEEN CANADA AND THE COMMUNITY ON

RECOGNITION OF EQUIVALENCE IN SANITARY MEASURES WITHIN THE

LEGAL FRAMEWORK OF CANADA-EU BILATERAL RELATIONS



Mathew P. Andruczyk, LLM 2013



















Introduction
The following paper is an attempt to situate a bilateral agreement (Agreement
between the European Community and the Government of Canada on sanitary measures
to protect public and animal health in respect of trade in live animals and animal
products, Official Journal of the European Communities, L 71/3) within the context of
EC competence to sign international agreements with non-member countries as well as
within the context of evolving framework of relations between EC and Canada. The core
of the essay will be the description of the process and the legal competence in the light of
EU law for the EC to sign the above document. The competence at the time the
agreement was actually signed will be traced but an attempt to see how the Treaty of
Lisbon would affect the process of conclusion will also be made.
The paper will first briefly outline the nature of the Veterinary Agreement as to its
subject matter and proclaimed objectives.
Then, the general legal/political framework of Canada-EC relations, starting with
the Framework Agreement of Economic Cooperation signed between the then EEC and
Canada in 1976 and tracing it up to the present day negotiations of a comprehensive
economic partnership agreement
1
, will be outlined.
After presenting the milestones in the development of Canada-EU relationship,
the focus will be switched to EU. The paper will attempt to describe the process of
concluding the Veterinary Agreement with Canada, with particular emphasis on any
issues of competence to conclude it
2
.

1
Attempt will be made to position the Veterinary Agreement within the general objectives of the
documents constituting the framework of cooperation between EC and Canada at any one time. Regarding
the framework as it stood predating the Veterinary agreement, such positioning of the Veterinary agreement
may be illustrative how it was in a way foreshadowed by prior relationships. As for post-agreement
developments, they may show how and if the particular agreement itself foreshadows certain trends in the
development of the relationship.
2
Here, there are to be two questions. Firstly, whether given the proclaimed legal basis for conclusion, the
EC has competence to conclude a non-mixed agreement. Secondly, whether the stated legal basis indeed
corresponds to the subject matter of the agreement.
Finally, attempt will be made to view the agreement through the prism of the
revised provisions on signing international agreements in the Lisbon Treaty. The question
asked here, will be whether the new treaty would affect in any significant way the
conclusion of the Veterinary Agreement for the EU perspective.
This paper may be viewed as an exercise in application of the legal concepts and
relationships presented in the course to a concrete case of EC-non-member treaty making.
The nature of the Veterinary Agreement of 1999 between Canada and EC
The Veterinary Agreement was concluded between Canada on one side and the
European Community on the other. It came into effect upon exchange of notes indicating
compliance with legal requirements by respective parties
3
.
The overarching objective of the agreement appears to be removal of sanitary
barriers to trade in live animals and animal products
4
. However, the agreement places a
condition on any steps taken to facilitate that sector of trade, namely that they have to
safeguard of animal and human health
5
.
The central concept underpinning the objective of the agreement is the concept of
equivalence of sanitary measures
6
. The means through which the agreement attempts to
achieve its objectives is conditional obligation of recognition of the equivalence of each
others sanitary measures by the parties
7
.
The agreement elaborates the process through which equivalence may be sought
and obtained by the exporting party. Attainment of equivalence status facilitates the

3
Final Provisions, Art.18(1). Agreement came into force on 17
th
December, 1999 (OJ L 71/99 P. 64)
4
This objective is mentioned in the preamble to the agreement DESIRING to facilitate trade in live
animals and animal products as well as further reaffirmed in the body of the agreement, being accorded
a place of prominence in Article 1 Objectives.
5
See third recitation of the Preamble, which states while safeguarding animal and public health in
relation to the wholesomeness of food products. That arguably formally limits the measures, which might
be taken under the agreement to these which can be proven to safeguard animal and human health,
therefore restricting the scope of allowable measures.
6
Concept of equivalence is enunciated in Article 6, in context of obligation to recognize such
equivalence by the parties.
7
Article 6(1). The obligation is conditional upon demonstration by the other party that it demonstrated
appropriate level of protection. Article 7 further elaborates on the criteria for recognition of equivalence,
while Annex VI outlines applicable audit procedures.
process of health certification and thereby facilitates trade in live animals and their
products between the parties.
The veterinary agreement provides for its amendments, which are to be effected
by the instrument of exchange of notes by the parties. It also sets up a structure called
Joint Management Committee, whose main function is specified as periodic review of the
content of the 10 annexes attached to the agreement and issuance of recommendations. In
terms of institutional structures, the agreement also provides for formation of technical
working groups to address technical issues.
Article 17 defines territorial application of the agreement as territory of Canada
on one side and territories in which the Treaty establishing the European Community
is applied.
Annex II allocates responsibility by identifying Responsible Authorities for
each party. Interestingly, on the EC side, the responsibility is divided between the EC and
Member States. The agreement provides for its termination in Article 18.
The Veterinary Agreement takes due account of its interactions with other
agreements/ legal regimes. On the most basic level, it defines certain basic terms by
reference to the SPS agreement. The intended compliance with the WTO agreements is
further emphasized in the Preamble as well as in Article 4 of the agreement. Reference to
internal law of the EC is made in Article 17 on territorial application and more generally
implementation of the agreement is made subject to internal procedures for both parties
in Article 18. Finally, Article 18(1) appears to recognize the internal legal requirements
for concluding international agreements as regards both parties, where it states that the
exchange of notes shall be indicative of satisfaction of all legal requirements
necessary for that purpose.

Outline of the milestones in EC Canadian relations
Canada is the first industrialized country with which the then EEC signed an
international economic agreement in 1976. The Canada-EC Framework Agreement on
Economic Cooperation is a rather high-level document, formally concluded between
Canada on one side and both the European Economic Community and the European
Atomic Energy Community
8
on the other
9
. The agreement has a distinctly
commercial/economic thrust
10
. In Article 1, both parties pledge to follow the principle of
MFN in their relations with one another. Article 2 commits the parties to cooperate to
resolution of bilateral trade issues of common interest
11
. Article IV sets up a permanent
body (Joint Cooperation Committee), which is entrusted with the task of reviewing the
activities under the agreement
12
. Finally, the Framework Agreement makes provisions for
other agreements in force. It reaffirms the rights of the under GATT, as well as
interestingly recognizing possible concurrence of competences between the Communities
and its Member States
13
.
The next important moment for the relationship was the 1990 Declaration on
Transatlantic Relations. In contrast to the framework agreement, the document signed by
the Prime Minister of Canada and President of the European Council is a political

8
The agreement makes reference to a prior agreement between the EAEC and Canada (1959) and stipulates
that to the extent any inconsistencies exist, the present agreement prevails.
9
A separate protocol was entered between ESCC and Canada (Article VI), thus all three communities were
brought under the agreement.
10
Preamble to the agreement states; RESOLVED to consolidate, deepen and diversify their commercial
and economic relations to the full extent of their growing capacity to meet each others requirements on the
basis of mutual benefit.
11
The Veterinary Agreement may be seen as particular application of that obligation is the sector of
animal/animal products trade.
12
The provision sets up a very rudimentary structure but regular meetings are mandated and some
functional differentiation of sub-organs is envisioned.
13
The agreement appears to recognize the issue without (perhaps not surprisingly given its general nature)
attempting to delineate these. It is somewhat ambivalent on that point in that it affirms the MS rights to
enter into separate agreements (art. 3.4) at the same time stating that it supersedes any prior agreements
incompatible with it (art4.3). Is if an application of later in time rule?
declaration
14
. It appears to be influenced in its tone by contemporary geopolitical events
and its subject matter is much broader than the framework agreement
15
. It adopts a
principle of consultation on issues of common interest and cooperation in multilateral
forums. The declaration lists a number of common goals, the objective of rejecting
protectionism and opening multilateral trade being of particular interest
16
. The need to
liberalize multilateral trade is further mentioned in the context of GATT, and the
reference is made more specific by mention of dialogue on technical barriers to
agricultural trade
17
. Finally, the declaration commits the parties to regular high-level
meetings involving top officials
18
, and to continuing a trend to develop and deepen the
existing procedures for consultation.
19

The Joint Political Declaration and Action Plan of 1996 was signed by Canada
and European Union. The document, like its predecessor, is not a legally binding text
20
.
The main body of the text is divided into Political Declaration and a more detailed Action
plan, attempting to concretize the goals enunciated in the opening part. The Declaration
invokes purported shared values of the two entities and essentially appears to affirm
commitment of both parties to use multilateral system to resolve any existing problems
and promote free market values and democracy. It identifies a number of issues on which
the parties pledge to cooperate. As concerns trade relationship, while recognizing the role

14
The document clearly is not intended to have any binding legal effect as evidenced by its language
devoid of shall etc.
15
The declaration touches on issues of humanitarian rights, political situation, defence structure, trans-
national problems etc.
16
The Veterinary Agreement, by mandating the process of equivalence recognition of sanitary measures,
eliminates possibility of a party claiming that adequate level of protection is not met, having recognozed
it earlier.
17
If one views SPS agreement as lex specialis in relation to TBT, and the Veterinary Agreement as
application of SPS principles, then the Veterinary Agreement may be viewed as simply a technical barriers
agreement with restricted agricultural scope (live animals and animal products).
18
Practice of Summits was initiated, involving Canadian prime Minister on one side and the Presidents of
the European Council and Commission on the other.
19
The Veterinary Agreement has its own Joint Committee to administer application of that agreement.
20
The Declaration part states in the relevant part that neither it nor the Action Plan, affect any legal
position of Canada, the European Community, or its Member States.
of WTO in opening markets, the parties also commit to bilateral avoidance and practical
resolution of barriers to trade.
The Action Plan, which attempts to give a more detailed account of what the
parties intend to do, is divided into four parts
21
. Of particular relevance is the first section,
subdivided further into Multilateral Actions and Bilateral Actions. In the former
subsection, mention is made of technical trade barriers removal through full
implementation of SPS agreement. In the latter (bilateral) part, the first item makes
reference to necessity of improving by making more anticipatory, the dispute
mechanisms for various trade sectors
22
. The idea of mutual recognition of regulatory
outcomes is contained in paragraph 2(c) of bilateral section. Finally, a separate action
item is devoted to the Veterinary Agreement, whose speedy conclusion is anticipated
almost exactly three years before its actual coming into force.
In general, the 1996 declaration appears to be a document expanding significantly
the range of areas of cooperation and far more detailed in enumerating these areas as well
as concrete common actions anticipated.
Less than a decade after 1996 declaration, EU-Canada Partnership Agenda of
2004 summarized a review of the relationship between the parties
23
. The document is far
less detailed than the 1996 Action Plan and takes a rather sweeping view of the issues,
which it places in the global context
24
. The Agenda recognizes at the outset the frequency
of concurrence of views of the parties in international organizations and much of the

21
The first two parts comprise the three pillars of the EU, with EC pillar related steps included in
Economic and Trade Relations section and the remaining two in Foreign Policy and Security Issues
section.
22
Paragraph 2(a). The Veterinary Agreement does not formalize dispute settlement but it provides for
consultation process between parties and for review of such consultations by Joint Committee followed by
recommendation issued to the parties.
23
That review was committed to at Ottawa Summit of 2002 (EU-Canada Partnership Agenda, 2004)
24
Of the five main sections, 3 are explicitly devoted to respectively International Security, Global
Economic situation and Global Challenges. Even common actions are placed in the context of multilateral
forums.
document appears to be elaboration on which organizations will provide a forum for
coordinated action on what issues of interest.
In the context of economics, the two parties recognize the primacy of WTO as the
forum and in particular commit themselves to Doha Round. The parties identify
regulatory issues as increasing in relative importance in a sense of being a trade barrier.
Most significantly, the parties commit themselves to two initiatives opening formal
negotiations of Trade and Investment Enhancement Agreement
25
and development of
Voluntary Framework for Regulatory Cooperation. The former negotiations have now
been superseded by negotiations on the comprehensive economic agreement but in the
meantime, Framework for Agreement was drafted. The document lists 16 sectors,
which were envisioned to fall under TIEA, yet the first place was reserved for the
overarching issue of Regulatory Cooperation. In that context, reduction of unnecessary
regulatory differences while affirming the right to determine appropriate level of
protection of public interest is given as one of the means of removing obstacles to trade
26
.
In contrast to the more ambitious TIEA agreement, which never came into force,
the subsidiary
27
Voluntary Framework for Regulatory Cooperation was signed towards
the end of 2004
28
.
Essentially, it implores the regulators of the parties at various levels, to
communicate at all stages of the process of development of their respective regulations in
the various sectors. The objectives may be interpreted as multi-layered starting with

25
The negotiations were launched and three rounds completed, however they were discontinued in view of
since many of the issues we are tackling in the TIEA are also being addressed in some fashion in the
WTO negotiations, Canada and the EU jointly decided in May 2006 that it would be best to pause the TIEA
negotiations at this stage and await the outcome of the WTO Doha Round before moving ahead.
< http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/eu-
ue/index.aspx#contact>

26
The Veterinary Agreement arguably puts those aspirations into practice. While it does not harmonize
regulations, it attempts to achieve identity of outcomes, while Article 13 (Safeguard Clause) explicitly
affirms the right of Parties to take measures to protect public/animal health.
27
The Framework in its introduction makes reference to the fact that the two parties decided in their
agreement (TIEA) to make regulatory co-operation a key element of the future agreement.
28
The Framework describes itself as not legally binding and not affecting rights under any multilateral
agreements.
exchange of information/best practices between regulators of respective parties, through
consultations in development of regulations all the way to actual cooperation in reduction
of differences in regulations in order to minimize trade impact. While the above
objectives are to apply as broadly as possible, particular mention is made of WTO
regulated fields of Technical Barriers to Trade and SPS Agreement
29
.
In terms of accomplishing the above objectives, the framework proposes the
approach of preliminary sharing of proposed regulations to avoid trade issues as well as
equivalency recognition process.
Finally, the closing part of the Framework gives the regulators of respective much
leeway in order to encourage their exchange of information as well as creating a formal
structure of Regulatory Committee to oversee progress.
At the May 2009 Canada-EU Summit in Prague, it was announced that the parties
would start negotiations of the comprehensive economic cooperation agreement. The first
step towards the agreement was taken when the Joint Report on the EU-Canada Scoping
Exercise was published. The Scoping Report identified some dozen areas, which should
be included in a comprehensive agreement, whose liberalization measures should go
beyond any commitments in any of the bilateral sectoral agreements concluded between
the parties. Separate section is devoted to SPS issues and a specific reference is made to
the Veterinary Agreement and the need to expand on its provisions in the future.
Regulatory issues were also deemed deserving its own part, and in that context, necessity
for elimination of divergence was again affirmed. Finally, desirability of a binding
dispute settlement mechanism was stated.

29
In those areas, Parties are encouraged to consult at the preparation stage of regulation-making.

The Veterinary Agreement its conclusion in light of applicable legal rules
Before attempting to trace the process of conclusion of the agreement, it would be
good to answer a simple typological question and attempt to define the status of the
document under international law. The Agreement between the European Community and
the Government of Canada on sanitary measures to protect public and animal health in
respect of trade in live animals and animal products is self-designated as Agreement
and is entered as such in EC registers. It is concluded between a state on one hand
(Canada) and an international organization on the other (EC). Therefore, the agreement
appears to fall within the definition of a treaty as delineated by Art.2.1.(a).i of the 1986
Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations
30
.
Therefore, having established that the agreement is an international treaty, the
focus of the paper will switch to EC and its capacity to enter into international
agreements under international law. According to Article 281 EC
31
is to enjoy legal
personality. However, application of the relevant rules of interpretation
32
easily
establishes that such personality prima facie only extends to the Member States
33
. The
issue is resolved by the jurisprudence of the ECJ, whose jurisdictions extends to

30
The only doubt may be entailed by the clause governed by international law. While the agreement does
not have its own dispute settlement mechanism, Article 4 makes reference to rights and obligations under
WTO. Since WTO has a compulsory dispute settlement, any dispute falling under the agreement would
probably fall under WTO matters, and hence be subject to adjudication under WTO. Since WTO is an
international agreement (international law), then Veterinary Agreement would consequently be governed
by international law.
31
The text of the article laconically states The Community shall have legal personality
32
Application of Article 31(1) and (2) of VCLT (1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose) combined with Article 282 EC ( the Community shall enjoy the most
extensive legal capacity accorded to legal persons under their laws) as well as the immediate textual
context of 281, which is concerned with internal workings of the Community, leads to that rather
unproblematic conclusion.
33
It is akin to legal capacity of an international organization.
interpretation of the Community law
34
. In case ERTA
35
, the ECJ is seen by Craig and
Burca to be granting the EC international legal personality.
36

The possession by the EC of international legal personality in view of its internal
legal regime is not of itself determinative of competence to conclude any international
agreement
37
. The legal basis for the conclusion of the Veterinary Agreement with Canada
was provided as Article 133
38
and the agreement itself was classified as a Trade
Agreement
39
. Craig and Burca refer to the objective of the measure as determinative of
objective legal basis of a measure, therefore it would be useful to compare the
objectives of the provisions of Common Commercial Policy with the objectives of the
Veterinary Agreement. Article 131 refers to abolition of restrictions to international
trade as one of its objectives whereas Article 133(1) appears to make this goal more
precise by specifying areas where action might be taken as inter alia achievement of
uniformity in measures of liberalisation, export policy. The preamble of the
Veterinary Agreement cites objectives of facilitation of trade in live animals and
recognizes the connection between animal health and disruptions in trade
40
. Therefore, at
the level of general objectives, there appears to be a correspondence between the goal of
abolition of restriction on one hand and the eliminating animal disease as a factor
creating disruptions in trade. Generalities aside, the substantive provisions of the
agreement indeed arguably are rationally related to the ends pursued. By creating a

34
Article 220 refers to the role of both courts in assuring that in interpretation of the Treaty the law is
observed, whereas Article 230 empowers the ECJ to review legality of measures in light of
infringements of the Treaty, which appears to necessarily imply powers of interpretation.
35
C 22/70, Commission v. Council
36
EU Law Text, Cases and Materials 4
th
ed,. Paul Craig and Grainne de Burca, Oxford Publishing, p. 170.
37
According to Craig and Burca EC acts on a principle of conferred powers and may only act when
there is a basis for action provided in the Treaties. (p.171). There are two articles in the EC Treaty
granting the competence to conclude international agreements (133 and 310).
38
The pertinent part of Article 133 states 3. Where agreements with one or more States or international
organisations need to be negotiated, the Commission shall make recommendations to the Council, which
shall authorise the Commission to open the necessary negotiations.
39
Summary of the agreement found in Treaties Office section of the European Commission website.
40
The third recitation states DESIRING to facilitate trade in live animals and animal products and the
fourth recitation speaks of RESOLVING to take the fullest account of the risk of spread of animal
infection and disease in particular to avoid disruptions to trade.
mechanism for recognition of equivalence by the Community of Canadian sanitary
measures, the agreement paves the way for greatly simplifying the certification
requirements for Canadian exporters
41
. By virtue of the reciprocal nature of the
Agreement, it also performs another function assigned to CCP by Article 133(1), namely
that of achieving uniformity in the export policy
42
. Finally, Article 133(1) refers to the
role of protection of trade and the Veterinary Agreement also appears to be solidly
grounded on that account with its processes of notification of measures
43
, consultations
44
,
safeguard mechanism being subject to review
45
and Joint Committee
46
as well as
application of concept of regionalization
47
, all geared towards the task of avoiding any
trade disruptions and minimizing their duration/effects. While concluding the Agreement
under the exclusive competence the Community enjoys in the sphere of CCP does not
appear to be controversial, interestingly the only mention of sanitary and phytosanitary
measures is to be found in Article 152(4)(b)
48
of the EC Treaty. There, adoption of such
measures is authorized, where protection of public health is a direct objective,
probably not the case with the Agreement, which aims at facilitating trade while
protecting public health
49
.

41
By creating a compulsory, codified process for examination of application for recognition of sanitary
measures, the Agreement creates a legal framework for liberalizing (133.1) the EC market for Canadian
products.
42
Since the territorial application of recognition of equivalence by Canadian side extends to the whole
territory of application of the EC Treaty (Article 17), the exporters from all the Member States are
theoretically to be treated equally (uniform export policy).
43
Article 12(4) of the Agreement states the objective of notification as Each Party
shall endeavour in such situations to provide all the information necessary to avoid a disruption in trade,
and to reach a mutually acceptable solution.
44
Article 14 encourages the Parties to engage in Information Exchange in order to provide assurance,
engender mutual confidence and demonstrate the efficacy of the programmes controlled.
45
The safeguards clause (Article 13) requires notice by the party imposing it within 14 days and imposes an
obligation to engage in consultations with the other side.
46
The Joint Committee is charged with issuing recommendations in connection with administration of the
agreement (Article 16.2)
47
Article 5 affirms recognition by the Parties of the concept of regional conditions.
48
In the relevant part it states by way of derogation from Article 37, measures in the veterinary and
phytosanitary fields which have as their direct objective the protection of public health
49
The preamble to the agreement includes a sentence DESIRING to facilitate trade in live animals and
animal products between the Community and Canada while safeguarding animal and public health. This
appears to set a criterion of high level of public health protection for adoption of any measures to facilitate
trade adopted under the agreement. (cf. 152(1) para.1)
Finally, the capacity on the part of EC to conclude the agreement and the basis of
its competence may be viewed through the prism of connection between the Agreement
and the WTO. The Veterinary Agreement takes account of the link explicitly in Article 4,
where is states that rights and obligations entailed by the SPS Agreement remain
unmodified by the former. In other words, the Veterinary Agreement, by not explicitly
asserting the primacy of its provisions to the extent of any inconsistency with SPS,
appears to impose an interpretation of the Veterinary Agreement that should be consistent
with the SPS Agreement
50
. Just because the Veterinary Agreement, by virtue of its own
provisions, is to be interpreted consistently with the SPS Agreement, does not logically
establish any particular relation between the two
51
. However, upon examination of the
respective agreements, one discovers that they are both concerned with regulation of
something called sanitary measures
52
. While the SPS Agreements main focus is
arguably the achievement of equality of level of protection and thereby removal of
barriers to trade through the principle of National Treatment through harmonization, the
Veterinary Agreement attempts to harmonize only the levels of protection. The common
link in objectives pursued by both, appears to be stated in Article 4 of the SPS
Agreement, which conditionally
53
obliges the parties to enter into consultations on
conclusion of bilateral agreements on recognition of equivalence. Therefore, Article 4 of
the SPS arguably re-interprets the Veterinary Agreement as a simple legal consequence
of the former.

50
Had it been the intention of the Parties to modify the SPS Agreement as between themselves, VCLT
Article 41(1)b (Modification of Multilateral Treaties by Certain of the Parties Only) appears to have offered
an avenue. The fact is, that this option was not pursued (SPS Agreement does not prohibit modifications
nor does mutual recognition of equal protection levels (Veterinary Agreement) appear prima facie to go
against the aim of harmonization of such measures (Article 3 SPS)) and thus it must be concluded that the
Veterinary Agreement must be interpreted consistently with the SPS Agreement.
51
After all, any two agreements regulating different spheres may include a provision of consistency with
each other, admittedly with very little legal effect.
52
The term as used in the Veterinary Agreement is de facto defined by reference to the SPS Agreement.
53
The negotiations are to be entered on request from another party (Article 4(2) SPS)
If the conclusion of Veterinary Agreement by the EC is viewed as a legal
consequence of Communitys adherence to the SPS Agreement, then arguably the answer
to questions of its competence to sign the bilateral agreement would be found in its
competence to sign the multilateral agreement
54
. Those questions appear to be addressed
in the ECJ Opinion 1/94
55
. In paragraph 31 of the Opinion, the Court addresses the
question of the ability of the Community alone, to conclude the SPS agreement and states
Such an agreement can be concluded on the basis of Article 113 alone.. Since the
competence to enter agreements under Article 133 is of exclusive nature
56
, it therefore
appears to logically follow, that since the basis for the conclusion of Veterinary
Agreement is in fact the same as for the conclusion of the SPS the Veterinary Agreement
was rightly concluded exclusively by the Community
57
.

Treaty of Lisbon and what difference would it make
58
?
This section will attempt to outline how the provisions of the new treaty would
possibly affect the conclusion of the Veterinary Agreement between Canada and the EC.
A good departure point is an observation that the agreement would no longer have been
concluded by the Community itself as according to Article 1 TEU, The Union shall
replace and succeed the European Community. Thus, under the Treaty of Lisbon,
European Union would have been the only legal entity left.
That legal entity would also be endowed with a legal personality
59
. In terms of the
capacity to conclude an agreement, Article 300 of the EC appears to have been succeeded

54
It would be incoherent if the Community had capacity to sign the SPS Agreement and yet lacked capacity
to sign agreements necessitated by the former. As for competence (legal basis), it would seem that they
should also be identical for both the more general agreement (SPS) and a supplementary agreement (lex
specialis, with respect to the SPS).
55
Opinion 1/94, 15 November 1994.
56
According to Craig and Burca the exclusive nature of CPP was established by Opinion 1/75 (p.183).
57
In Opinion 1/94. the Council argued for adoption of Agricultural Agreement and the SPS agreement
under Article 37 EC, an argument rejected by the ECJ (para.28-30). This author is uncertain how
acceptance of that argument would have influenced the exclusivity of the Community powers.
58
The following section was based on a summary of the impacts of Treaty of Lisbon on external relations
The European Unions External Relations after the Lisbon treaty by Wouters, Coppens and de Meester.
by Article 216 of the TFEU. Whereas the old Article 300 arguably stressed conferment
principle
60
in its wording, Article 216 is more permissive
61
in its tenor. They common
feature of both provisions is that one of their conditions is allowance for such an
agreement under the Treaty. Interestingly, Article 216 also provides another ground for
conclusion of agreements provision to that effect in a legally binding Union act.
Assuming unchanged definition of the scope of CCP, given that the Veterinary
Agreement was concluded under that rubric, it remains to be examined what provisions if
any, exist for conclusion of international agreements under the Commercial Policy. The
provisions for conclusion of international agreements would also exist under Article
207
62
, therefore Article 216 in combination with Article 207 would be sufficient to
authorize conclusion of an agreement falling under a CCP by the Union the former
providing the criteria for capacity to conclude an agreement and the latter article meeting
that criterion by providing explicitly for the conclusion within that area.
The next question to ask is one about competence would the EU under the new
Lisbon Treaty be able to conclude the agreement on its own? Here, one can observe one
of the novel elements of the Lisbon Treaty explicit categorization of competences
63

according to exclusivity. Commercial Policy is one of five areas where the European
Union would be allocated exclusive competence, which combined with principle of
parallelism would imply exclusive external competence in the sphere of commercial

59
Article 47 TEU. In that sense, the EU would succeed EC as there was some divergence of opinion on the
legal personality of the old EU.
60
Article 300 starts Where this Treaty provides for the conclusion of agreements which while not
necessarily meaning explicit provision, nonetheless seems to place a stress on possibility of constructing
the powers to sign an agreement out of an explicit provision of the Treaty.
61
Article 216, while retaining primacy of conferment by Treaty, provides 3 more grounds for conclusion of
international treaties.
62
In the relevant part, 207 replacing the old Article 133 states conclusion of tariff and trade agreements
relating to trade in goods and services, thus maintaining the specific capacity to sign international
agreements in that sphere.

63
Article 3(10) TFEU provides a list of five areas of exclusive competence of the Union.
policy
64
. That exclusive external competence would allow the EU to sign the Veterinary
Agreement with Canada on its own, with the only significant difference being the process
of internal legislative passage involving the consent of the European Parliament
65
. It is
worth stressing again that the above analysis presumes that the scope of what constitutes
commercial policy is the same under both Treaties
66
.
While the legal mechanics of justifying the conclusion would be quite similar
under both Treaties as presented in the above scenario
67
, there is another rather intriguing
avenue possibly open under Article 216 TFEU. Under that article, an agreement may be
concluded, when its conclusion is provided for in a legally binding Union act. Article
216(2) states that agreements are binding upon EU institutions, thus are arguably binding
Union acts. It would be proper to recall at this point, that EU as a successor to EC, would
be bound by the SPS agreements, whose terms stipulate an obligation to enter into
negotiations of equivalence agreements, of which the Veterinary Agreement is an
example. Therefore, buy virtue of being bound by the SPS, the EU would acquire
competence under 216 to conclude the Veterinary Agreement. Such competence
however, would according to Wouters
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not be of exclusive nature, thus probably leaving
the first legal scenario as the preferred option for conclusion of the Veterinary Agreement
under the Treaty of Lisbon.


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That principle is codified in Article 3(2), which grants Union exclusive competence in concluding
international agreements provided that it is necessary for exercise of internal competence.
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Wouters et al. state that Hence the combination of Article 207(2) TFEU (which indicates that the
ordinary legislative procedure must be followed to adopt the internal measures defining the framework of
implementing the CCP176) with Article 218(6)(a)(v) TFEU (which states that for international agreements
that cover a field that requires the ordinary legislative procedure the consent of the Parliament has to be
obtained) leads to the conclusion that the Parliaments consent will have to be obtained for the conclusion
of international agreements in the field of CCP
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If it is not, then the Veterinary Agreement could possibly no longer fall under CCP under the Lisbon
Treaty, which would of course affect all the conclusions.
67
With the significant difference being that under EC Treaty it was Opinion 1/94 and hence the ECJ
bestowing exclusive competence on EC, where under Lisbon it is Article 3 TFEU.
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Following this reasoning, both legislative and non-legislative legal acts can
form the basis of implied external competence by the Union; but only when the external competence is
provided for in a legislative act, an exclusive external competence would be created




Final remarks:
In the first part of the paper, attempt was made to summarize the nature of the
Veterinary Agreement between Canada and the Community. The author believes that the
agreement is at its heart a trade-facilitation document, attempting to facilitate removal of
trade barriers in the context of sanitary measures aimed at animal and public health
protection. The agreement may be viewed as a legal consequence of the commitments
made by both parties under the SPS Agreement and is a technical supplement to that
agreement in the area of procedures for equivalence recognition.
In the second part, an outline of the evolution in Canada-Community relations
framework was provided with particular regard to place accorded to regulatory
cooperation between the parties. Starting with the skeletal 1976 Framework Agreement
where the most precise trade liberalization commitment to be found was MFN obligation,
the relationship evolved to encompass matters within all three pillars with the parties
currently engaged in negotiations over a comprehensive free trade agreement to be
superimposed on a slew of more narrow, sector-specific agreements, of which the
Veterinary Agreement is an example. It appears that the regulatory issues and in
particular technical barriers to trade arising in the context of differences in their
respective regulatory regimes were seen as gaining in prominence. It is against this
background of increased importance of regulatory trade barriers, that the conclusion of
the Veterinary Agreement must be viewed as well.
Having presented the bilateral legal background for the conclusion of the
Veterinary Agreement, the focus was switched to analysis of the legal considerations for
its conclusion in light of the international law and most importantly Community law. It
appears that the conclusion of the agreement under CPP was a logical consequence of its
being a subsidiary agreement of the SPS and the SPS itself having been adjudged as
falling under CCP under the jurisprudence of the ECJ.
Finally, the conclusion of the agreement was examined in light of Lisbon Treaty
provisions, and it was discovered that its legal basis (CCP) and the legal mechanics
would remain unchanged, with the significant differences provided by EP involvement
and the interesting possibility offered by Article 216.