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CETA and Labour Mobility
PART I
December 8, 2015
Agenda
Welcome & Introductions
Presentation
Conclusion
Q&A
Instructions
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Thank You to Our Sponsor
About CERC
The force of change in employee mobility
Working to impact the systems, policies and processes that enable
employers to move the right people effectively and efficiently.
• Research
• Government Relations
• Education CERP/ CGMP
• Knowledge Transfer
Membership includes many of Canada’s top FP100 companies
A Thought
Leadership
Organization
Today’s presenters
Mark Newcombe
International Trade Policy Advisor
Temporary Resident Policy and Programs Division
Immigration, Refugees and & Citizenship Canada
Christine Roy
Senior Trade Policy Analyst
Services Trade Policy Division
Global Affairs Canada
CETA and Labour Mobility PART I
Global Affairs Canada &
Immigration, Refugees and Citizenship Canada
Not for Public Distribution 7
Outline
1. Introduction of CETA
2. Labour Mobility in recent FTAs and CETA
3. Highlights of the CETA Temporary Entry chapter
4. CETA chapters addressing “beyond the border” services issues
5. Next steps
6. Concluding remarks and questions
8
CETA: A new generation agreement
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• CETA is one of Canada’s most
ambitious trade initiatives to date.
• CETA covers issues such as trade in
goods, services, investment, intellectual
property and government procurement.
• Negotiations were launched in 2009 and
concluded in August 2014.
CETA
Importance of the EU market
EU 24.5%
NAFTA*
24.8%
Rest of the
World 50.7%
World GDP* (2014)
*Excludes Canada
10
• The EU is the world’s largest integrated
economy, with more than 500 million
consumers and a $20 trillion GDP.
• With CETA, Canada gains preferential
access to almost a quarter of the world’s
marketplace.
• The EU market is comprised of 28
Members States who have juridical
powers over a number of sectors and
issues.
• EU Member States are responsible for
laws and regulations relating to labour
mobility issues.
Source: CETA Secretariat, DFATD
Data: IMF, World Economic Outlook
Temporary Entry supports other services-
related chapters
11
Temporary entry of business persons
Temporary Entry
Financial Services
Cross-Border
Trade in services
Mutual Recognition of
professional qualifications
Domestic regulation
Telecoms
Canada’s approach in FTAs:
Cross-Border Trade in Services
• Two chapters cover services provided by natural persons: the Cross-Border Trade in Services (CBTS) and Temporary Entry of Business Persons (TE).
• The CBTS chapter in Canada’s FTAs: – covers “beyond the border” barriers: discrimination against
foreigners/non-residents, commercial presence requirements, etc.
– provides legally-binding rights and obligations such as National Treatment and Most-Favoured-Nation
– ensures predictability and transparency of market access
– preserves governments’ right to regulate
• The CBTS chapter covers domestic regulation and mutual
recognition of professional qualifications.
12
TE in Canada’s FTAs
• Canada’s approach to Temporary Entry provisions facilitates labour
mobility by:
– Addressing mobility barriers “at-the-border” by seeking to eliminate
economic needs test (ENTs), quotas, or other numerical restrictions
– Covering the following categories: Business Visitors, Investors, Intra-
company Transferees (ICTs) and Professionals (some FTAs include
technicians and spousal employment)
– Reciprocal commitments
– Commitments for professionals listed on an occupational basis
• Canada’s approach does not: – Address matters related to permanent immigration, citizenship or entry
visas
– Prevent regulators from applying measures to regulate entry and stay
13
Main TE differences in CETA
• Commitments by categories of business persons are subject to
reservations/limitations listed by each EU Member State.
• Duration of stay set out for each category.
• Commitments for professionals taken by sectors instead of
occupations.
• Specific requirements applicable to Professionals (e.g., education,
contract length and experience).
• TE chapter has a different scope covering both « border » and
« beyond the border » measures (e.g., residency requirements).
• The obligation of non-discrimination only extends to a short list of
sectors for professionals, subject to reservations.
14
CETA TE Chapter
• Scope and coverage of TE provisions: chapter covers the full mobility of
business persons addressing barriers at the border and barriers beyond the
borders imposed by regulatory authorities.
• Main horizontal elements and provisions of the TE chapter include:
– Provision of information (Transparency)
– Contact points
– Provision on processing fees
• TE chapter covers the following categories of business persons:
– Key Personnel (Investors, Business Visitors for Establishment and Intra-Company
Transferees)
– Professionals (divided between Contractual Service Suppliers and Independent
Professionals, including Technologists)
– Short Term Business Visitors
– Spouses
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Key personnel
Definition:
– Business visitors for establishment purposes (persons working in a
managerial or specialist position who are responsible for setting up an
establishment or investment);
– Investors;
– Intra-corporate transferees: senior personnel; specialists; and graduate
trainees.
• Removal of numerical restrictions or economic needs tests (such as Labour
Market Impact Assessment).
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Intra-corporate transferees Definition:
• ICTs include: senior personnel; specialists; graduate trainees.
Reservations:
• Economic needs tests removed (unless reserved by a Member State).
• Other limitations listed by a few Member States.
Requirements:
• Qualifying relationship between entities
• Employed by an enterprise or have been partners in it for at least one year
and being temporarily transferred to an enterprise.
Length of stay:
• Length of stay for specialists and senior personnel is the lesser of 3
years or the length of the contract, with a possible extension of up to 18
months. For graduate trainees, the lesser of one year or the contract.
17
Investors
Definition:
• Investors include business persons who establish, develop, or administer
the operation of an investment in a capacity that is supervisory or executive.
Reservations:
• Economic needs tests removed unless reserved by a Member State.
• Other reservations listed by a few Member States.
Requirements:
• Substantial amount of capital
Length of stay:
• Length of stay – 1 year, with possible extensions.
18
Professionals (CSS)
Definition:
• A CSS is an employee of an enterprise, which has obtained a service contract for a period not
exceeding 12 months.
Reservations :
• Economic needs tests removed unless reserved by a Member State.
Requirements:
• Must be an employee for at least the year immediately preceding the date of submission of an
application for entry.
• Must possess at least three years of professional experience in a related field.
• Must possess (i) a university degree or a qualification demonstrating knowledge at an equivalent
level and (ii) professional qualifications where required.
• License is required where necessary.
Length of stay:
• Length of stay is a cumulative period of no more than twelve months in any twenty-four month
period or the duration of a contract whichever is less.
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Professionals (IP)
Definition:
• An IP must be a self-employed business person established in another territory and must have
obtained a service contract for a period not exceeding twelve months.
Reservations:
• Economic needs tests removed unless reserved by a Member State.
Requirements:
• Must possess at least six years professional experience in the sector of activity which is the
subject of the contract.
• Must possess (i) a university degree or a qualification demonstrating knowledge of an equivalent
level and (ii) professional qualifications where required.
• License is required where necessary.
Length of stay:
• Length of stay is a cumulative period of no more than twelve months in any twenty-four month
period or the duration of a contract whichever is less.
20
Technologists (CSS and IP)
Definition:
• Technologists are business persons who have completed a 3-year post secondary degree.
Reservations:
• Economic needs tests removed unless reserved by a Member State.
• Commitments will only apply to engineering and scientific technologists (e.g., agriculture, biology,
forestry, etc.).
Requirements:
• Technologists are subject to the same provisions and conditions as CSS and IP in the TE chapter.
Length of stay:
• Length of stay is a cumulative period of no more than twelve months in any twenty-four month
period or the duration of a contract whichever is less.
21
Sectoral commitments for Professionals
Examples
CSS -37 sectors such as:
• Legal advisory services in respect of
public international law and foreign law
• Accounting and bookkeeping services
• Taxation advisory services
• Architectural services and urban
planning and landscape architectural
services
• Engineering services and integrated
engineering services
• Computer and related services
• Research and development services
• Advertising services
• Market research and opinion polling
• Management consulting services
• Services related to management
consulting
• Technical testing and analysis services
• Related scientific and technical
consulting services
22
Examples
IP-17 sectors such as:
• Legal advisory services in respect of
public international law and foreign law
• Architectural services and urban
planning and landscape architectural
services
• Engineering services and integrated
engineering services
• Computer and related services
• Research and development services
• Market research and opinion polling
• Management consulting services
• Services related to management
consulting
Short-term business visitors
Definition:
• Short-term business visitors (STBV) include business visitors that are not engaged in
selling a good or a service to the general public; and, do not receive remuneration
from a source in the other party.
• Activities include: meetings and consultations, research and design, marketing
research, training seminars, trade fairs and exhibitions, sales, purchasing, after-sales
or after-lease service commercial transactions.
Reservations:
• Economic needs tests are not permitted but some EU Member States listed
reservations.
Length of stay:
• The maximum length of stay of short-term business visitors is 90 days in any six-
month period.
23
Spouses of ICTs
• The CETA TE chapter includes a separate Understanding on
Spouses.
• Spouses of Canadian ICTs will benefit from the EU Directive on
Intra-Corporate Transferees which will facilitate entry and
employment of spouses of ICTs.
• Main benefits include simplified procedures for obtaining work and
residence permits.
• Some Member States (UK, Ireland and Denmark), which are not
signatories to the EU ICT Directive, will not be covered by the
Understanding on Spouses.
24
“Beyond the Border” issues
• In addition to TE, CETA contains other chapters aimed at facilitating
labour mobility once business persons have crossed the border.
• “Beyond the border” reservations have been listed by sectors and
are located in Annex I and II of the CETA for CBTS and Investment
non-conforming measures.
• Other new related chapters include Domestic Regulation and Mutual
Recognition of Professional Qualifications.
25
Reservations
• The TE chapter borrows from the CBTS chapter key obligations
(National Treatment, MFN) to address beyond the border measures.
• May include limitations affecting the ability to obtain a license or to
provide a service, such as citizenship and residency requirements.
• Some provinces and territories, as well as EU Member States,
maintain reservations such as residency requirements for
accountants and land surveyors.
• For Professionals: the obligation of non-discrimination applies to a
short list of sectors for CSS/IP in Annex of the TE chapter.
• For all other categories (key personnel, business visitors): non-
discrimination applies to all sectors.
26
Domestic Regulation
• A separate chapter which addresses barriers such as qualification
and licensing requirements and procedures applied by regulatory
authorities which can affect market access for a business person.
• Domestic Regulation chapter complements the TE chapter.
• Application is broad: CBTS, Investment, Goods, TE and Financial
Services chapters.
• Reflects good regulatory behavior: clarity, transparency,
accessibility, objectivity, impartiality and non-discretion.
27
Mutual Recognition Agreements (MRAs)
• A separate comprehensive chapter detailing MRA scope, process
and procedures.
• All of Canada-EU approach in negotiating MRAs.
• Detailed non-binding and voluntary guidelines for MRA negotiations
• MRAs to be binding and subject to dispute settlement.
• Challenging issue for EU as competency for licensing is an Member
State matter.
• Both Canada and the EU had a common interest in developing a
comprehensive set of rules.
28
Conclusion
TE main benefits for Canada
• CETA - “best FTA” ever negotiated by the EU on TE
• Comprehensive coverage of categories of business persons, including some
technologists.
• Access to a large services market and a pool of qualified services providers.
• First time EU agrees to cover a detailed list of activities for the category of Short
Term Business Visitors (including after-sales services).
• Several Member States went beyond their GATS commitments in sectors of interest
to Canada (e.g., professional services) in key Member States (e.g., France,
Germany).
• For Key Personnel and Short-Term Business Visitors, removal of listed reservations
by some Member States in the future will be automatically granted to Canadians.
• First time that EU agrees to grant to Canada the best “beyond the border” treatment
of their future bilateral FTAs.
• EU Directive on Intra-Corporate Transferees bound for spouses of Canadian ICTs.
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CETA Next Steps
Steps remaining prior to implementation
30
CETA implementation not expected before 2017
Legal Scrub
Translation Ratification
Questions
31
Main contacts
Christine Roy
Senior Trade Policy Analyst
Services Trade Policy Division
Global Affairs Canada
Mark Newcombe
International Trade Policy Advisor
Temporary Resident Policy and Programs Division
Immigration, Refugees and & Citizenship Canada
32
Thank You to Our Sponsors
Future CERC Events
Regional Events
Watch CERC website for upcoming events
Annual Conference, September 25-27, 2016
VANCOUVER, BC
The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.