The Canada-European Union: Comprehensive Economic and Trade Agreement

On September 26, 2014, Canada and the European Uniona agreed to adopt the The Canada-European Union: Comprehensive Economic and Trade Agreement  (“CETA“), with the goal at the time being that the agreement will take effect in 2016.  While that ultimately did not happen, on October 30, 2016, Canada and the European Union signed a final version of the agreement.

Chapter 10 of CETA provides for the facilitation of the temporary entry of business persons.  The European Union’s commitments are the most ambitious that the region has ever negotiated in a free trade agreement.  For Canada, the CETA’s temporary contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.  

CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“).  

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.

 

President of the European Council Herman Van Rompuy (L), President of the European Commission Jose Manuel Barroso (R) and Canada's Prime Minister Stephen Harper take part in a signing ceremony on Parliament Hill September 26, 2014 in Ottawa.

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Short Term Business Visitors

It is important to note that Chapter 10 of CETA provides that the maximum length of stay of short term business visitors shall be 90 days in any six-month period.  This is much narrower than how the Government of Canada currently interprets its general Business Visitor provisions.

Key Personnel

Chapter 10 of CETA provides that Canada shall allow the temporary entry and stay of “key personnel” of individuals from the European Union.  Key personnel is defined as natural persons employed within an enterprise of the European Union who is responsible for the setting-up or the proper control, administration, and operation of an enterprise. Specifically, key personnel includes: 

  • Business Visitors for Investment Purposes – Natural persons working in a managerial or specialist position who are responsible for setting up an enterprise.  They do not engage in direct transactions with the general public and do not receive remuneration from a source located within Canada. Business Visitors for Investment Purposes will be admitted to Canada as business visitors for 90 days within any six month period.
  • Investors – Natural persons who establish, develop, or administer the operation of an investment in a capacity that is supervisory or executive, and to which that person or the enterprise employing that person has committed, or is in the process of committing, a substantial amount of capital. Investors will be allowed 1-year work permits.
  • Intra-Corporate Transferee – Natural persons who have been employed by an enterprise in the European Union or who have been partners in it for at least one year and who are temporarily transferred to a subsidiary, branch, or parent company in Canada.  The natural persons must belong to one of the following categories:

Senior Personnel – natural persons working in a senior position within an enterprise who (a) primarily direct the management of the enterprise, or direct the enterprise, a department or sub-division thereof; and (b) exercise wide latitude in decision making, which may include having the authority personally to recruit and dismiss or taking other personnel actions (such as promotion or leave authorizations), and (i) receive only general supervision or direction principally from higher level executives, the board of directors and/or stockholders of the business or their equivalent, or (ii) supervise and control the work of other supervisory, professional or managerial employees and exercise discretionary authority over day-to-day operations.  These individuals will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months.

Specialists means natural persons working within an enterprise who possess: (a) uncommon knowledge of the enterprise’s products or services and its application in international markets; or (b) an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research equipment, techniques or management. In assessing such expertise or knowledge, Parties will consider abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term. Those abilities would have been obtained through specific academic qualifications or extensive experience with the enterprise.  These individuals will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months

Graduate trainees means natural persons who: (a) possess a university degree; and (b) are temporarily transferred to an enterprise in the territory of the other Party for career development purposes, or to obtain training in business techniques or methods.  These individuals will be allowed work permits valid for the lesser of 1 year, or the length of the contract, whichever is shorter.

Professionals

Chapter 10 of CETA provides that Canada shall allow the temporary entry and stay of contractual service suppliers, which is defined as being a natural person employed by an enterprise of the European Union that has no establishment in Canada and that has concluded a bona fide contract to supply a service to a consumer in Canada that requires the presence on a temporary basis of the European Union company’s employee in Canada.  To qualify for a LMIA exemption, the contractual service supplier must:

  • be engaged in the supply of a service on a temporary basis as employees of an enterprise, which has obtained a service contract for a period not exceeding twelve months. (If the service contract is longer than 12 months, the commitments in this chapter shall only apply for the initial 12 months of the contract.  Presumably, this means that unless another exemption is available, another Labour Market Impact Assessment is required to extend the foreign national’s employment.);
  • be entering Canada as an employee of the enterprise supplying the services for at least the year immediately preceding the date of submission of an application for entry into Canada. In addition, the foreign national must possess, at the date of submission of an application for entry into Canada, at least three years professional experience in the sector of activity which is the subject of the contract;
  • possess (i) a university degree or a qualification demonstrating knowledge of an equivalent level and (ii) professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other requirements of Canada, where the service is supplied; and
  • not receive remuneration for the provision of services other than the remuneration paid by the enterprise employing the contractual service supplier during their stay in Canada.

The CETA Professionals Contractual Services Suppliers category applies to the following sectors.  The sectoral commitments apply to all occupations listed under level “O” and “A” of Canada’s National Occupational Classification.

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Accounting and bookkeeping services
  3. Taxation advisory services
  4. Architectural services and urban planning and landscape architecture services
  5. Engineering services and integrated engineering services
  6. Medical and dental services
  7. Veterinary services
  8. Midwives services
  9. Services provided by nurses, physiotherapists and paramedical personnel
  10. Computer and related services
  11. Research and development services
  12. Advertising services
  13. Market research and opinion polling
  14. Management consulting services
  15. Services related to management consulting
  16. Technical testing and analysis services
  17. Related scientific and technical consulting services
  18. Mining
  19. Maintenance and repair of vessels
  20. Maintenance and repair of rail transport equipment
  21. Maintenance and repair of motor vehicles, motorcycles, snowmobiles and road transport equipment
  22. Maintenance and repair of aircrafts and parts thereof
  23. Maintenance and repair of metal products, of (non-office) machinery, of (non-transport and non-office) equipment and of personal and household goods
  24. Translation and interpretation services
  25. Telecommunication services
  26. Postal and courier services
  27. Construction and related engineering services
  28. Site investigation work
  29. Higher education services
  30. Services Relating to Agriculture, Hunting and Forestry
  31. Environmental services
  32. Insurance and insurance related services advisory and consulting services
  33. Other financial services advisory and consulting services
  34. Transport advisory and consulting services
  35. Travel agencies and tour operators’ services
  36. Tourist guides services
  37. Manufacturing advisory and consulting services

As well, Chapter 10 of CETA provides that Canada shall allow the temporary entry and stay of independent professionals, which is defined as being a natural person engaged in the supply of a service and established as self-employed in the European Union with no establishment in Canada and who has concluded a bona fide contract to supply a service to a consumer of Canada that requires the presence of the natural person on a tmeporary basis in Canada in order to fulfil the contract to supply a service.  The independent professionals must:

  • be engaged in the supply of a service on a temporary basis as self-employed persons established in Canada and must have obtained a service contract for a period not exceeding twelve months. (If the service contract is longer than 12 months, the commitments in this chapter shall only apply for the initial 12 months of the contract.  Presumably, this means that unless another exemption is available, another Labour Market Impact Assessment is required to extend the foreign national’s employment.);
  • at the date of submission of an application for entry into the other Party, have at least six years professional experience in the sector of activity which is the subject of the contract.
  • possess (i) a university degree or a qualification demonstrating knowledge of an equivalent level and ii) professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other requirements of the Party, where the service is supplied.

The CETA Professionals Contractual Services Suppliers category applies to the following sectors.  The sectoral commitments apply to all occupations listed under level “O” and “A” of Canada’s National Occupational Classification.

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Architectural services and urban planning and landscape architecture services
  3. Engineering services and integrated engineering services
  4. Computer and related services
  5. Research and development services
  6. Market research and opinion polling
  7. Management consulting services
  8. Services related to management consulting
  9. Mining
  10. Translation and interpretation services
  11. Telecommunication services
  12. Postal and courier services
  13. Higher education services
  14. Insurance related services advisory and consulting services
  15. Other financial services advisory and consulting services
  16. Transport advisory and consulting services
  17. Manufacturing advisory and consulting services

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