EU-Canada Trade Agreement May Be Incompatible With EU Law
from the too-ambitious dept
Just as it did with the Anti-Counterfeiting Trade Agreement (ACTA), Germany is leading the fight against both TAFTA/TTIP and the recently-concluded trade agreement between the EU and Canada (CETA). That’s clear from the fact that of the 1,115,000 European citizens who have signed an online petition calling for both TTIP and CETA to be dropped, 673,000 come from Germany. The most powerful anti-TTIP organisation, Campact, is also based in Germany, and points us to this legal analysis of CETA, and the extent to which it may be incompatible with EU and German law (pdf):
The following opinion assesses whether this “CETA Consolidated Text” of August 5th, 2014 complies with EU and [German] constitutional law. The opinion is limited to some selected regulatory fields of CETA. It does not claim to be exhaustive, but focuses on those provisions that dominate public discussion.
It’s rigorous stuff and pretty dry, but the conclusions are clear enough. For example, it confirms that CETA is a “mixed agreement.” That means it must be ratified by the EU and every one of the 28 Member States — a much higher hurdle to clear than just EU approval. It identifies the corporate sovereignty provisions — “investor-state dispute settlement” — as a problem:
The establishment of investor-state arbitration tribunals in CETA violates the judicial monopoly of jurisdiction laid down in EU law (Article 19 TEU [Treaty on European Union] in conjunction with Articles 263ff TFEU [Treaty on the Functioning of the European Union]) and [German] constitutional law (Article 92 BL). Furthermore, the EU does not have the competence to extend such a procedure to portfolio investments and to the field of financial services.
This has been a common criticism of ISDS — that it creates a parallel legal system only available to corporations, and which can overrule national courts. It’s a consequence of the fact that CETA is not just a trade agreement, but affects many areas of daily life that are normally determined by politicians, not unaccountable negotiators working in secret, as is the case with the EU-Canadian agreement.
Of course, this is just one legal opinion, and doubtless the European Commission would beg to differ. But it does indicate that the very ambition of CETA — and therefore also TAFTA/TTIP, which is very similar in this respect — may be its downfall. By seeking to move “behind the borders”, tackling “non-tariff barriers” that are actually regulations protecting health, safety, the environment, etc., these agreements may interfere with too many core functions of how a democracy works, and be struck down by the courts as a result.