Improved Mobility Rights by Virtue of the CETA

Some Canadian and European business travellers may assume that the implementation of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union will parallel the Maastricht Treaty. The Maastrict Treaty permits citizens of countries who are members of the European Union to sojourn freely in the territory of other member countries of the European Union. Although the business traveller’s mobility rights situation will improve by virtue of CETA, we are obliged to advise that those rights will not be as generous as those under the Maastricht Treaty. More particularly, Canadians will not be able to sojourn in Italy, or other member countries of the Union, for an undetermined period without any formality!

The base principal provided in CETA is that business travellers will be admitted for a temporary period of time provided that they comply with immigration laws in each country and that their sojourn in the territory be for business purposes.

CETA also confirms that the maintenance of visa requirements for  nationals of specified countries will not be considered as a violation of the undertakings provided in the Agreement. This would address the current situation with European member states such as Bulgaria or Romania whose nationals at the present time are required to hold a visa to visit Canada.

CETA creates new categories of business travellers who, as the case may be, may sojourn in the territory of a country for a variable period of time without obtaining a work permit. CETA also limits the nature of the specific business activities that a business traveller can perform during such period by specifying categories of business traveller. These categories are:

  • the business visitor for investment purposes;
  • the investor;
  • inter-corporate transferee;
  • senior personnel;
  • specialist;
  • graduate trainee;
  • contractual service provider; and
  • independent professional.

For those who think that these formalities can be ignored and that they may travel regularly to such countries as business visitors, be advised that CETA provides for the exchange of information between member countries of the European Union and Canada and as such countries will be able to trace the duration and frequencies of such sojourns. This could even have an impact on a person’s tax residency resulting in liability to pay income tax in the country where such a person sojourned, even on a discontinuous basis, for 183 days in any calendar year.

Be also advised that each country of the Union has issued reservations concerning mobility rights. The business traveller who wants to take advantage of the privileges granted under CETA to sojourn in a country should check these reservations issued by the country in question concerning the duration of a visit  and the nature of the activities that they can exercise during such period, without being required to obtain a work permit.

As an example, if a business traveller from Canada wishes to sojourn in Austria for more than 7 days in order to participate in a trade fair, or if during a calendar year, such traveller has spent more than 30 days cumulatively in Austria to participate in one or many trade fairs, that person would have to obtain, prior to their travels to Austria, a work permit and will also have to demonstrate the economic necessity of their business activity. The same traveller could be subject to different rules or even an absence of rules in other member countries of the Union.

What renders the mobility rights under CETA very complex is that there are 11 commercial activities identified under the Agreement, 28 countries who are members of the Union and 8 types of business travellers. As a sophisticated business traveller one should verify the modalities of mobility rights before undertaking your travels, to confirm whether or not a work permit is required.

Also note that CETA provides that rights granted to business travellers also extends to their spouses. One would hope that such rights also extend to the children of the business travellers.

From the perspective of a European business traveller seeking entry to Canada, CETA will provide benefits to European nationals in terms of labour mobility.

Presently, unless there is a special arrangement between Canada and a particular country regarding the mobility of their workers, Canadian immigration legislation limits the entry of foreign workers by requiring that a Canadian based employer apply to Employment and Social Development Canada (ESDC) for a Labour Market Impact Assessment (LMIA), formerly known as a Labour Market Opinion. This application is filed in advance of any application for a work permit filed by an employee.

For Canadian employers the LMIA process is a long and tedious chore. It demands a period of advertising, a wage level for the particular occupation that must meet ESDC standards and which may not meet the employer’s wage structure for that class of employees, and requires evidence such as job resumes that demonstrate no qualified Canadians or permanent residents are available to take the position. As the Federal Government stated in a policy document published in July 2014 which reviewed the Temporary Foreign Worker Program, the importation of temporary foreign workers is to be considered as a last resort.

In terms of Canadian business seeking to recruit European workers or a European business seeking to reinforce its presence in Canada, CETA will alleviate the LMIA hurdle for the specifically enumerated 8 categories of European business persons and in some instances will eliminate the need for both an LMIA and a work permit. However, as mentioned above, CETA will not eliminate the need for a visa if the European national is from a member state whose nationals are required to seek a visa to enter Canada, regardless of purpose.

Before being implemented, CETA must be approved by the European Council and the European Parliament. The legislation also needs to be passed by the Parliament of Canada. At this stage, it is uncertain whether the approval of the member states of the European Union is required and a debate on this question could arise when the Agreement is approved by the European Council.

Our specialists at BCF and Boughton Law will be pleased  to advise you on your mobility rights as they are provided under CETA.

This article was co-written by Didier Culat, Legal Counsel with BCF Business Law.

Tags: Bruce J. Harwood, Immigration, Article