RSIEAblog

by Julien Miéral

The launch of negotiations for a European Union (EU)-Canada Comprehensive Economic and Trade Agreement (CETA) were announced and launched 2009. The decision was then taken in 2011 to include a chapter on investment protection. After nine rounds of negotiations, parties reached an agreement on a text in August 2014[1].

That was for the bright and smooth story of the CETA. But at the time of this first conclusion, the CETA included an Investor-State Dispute Settlement (ISDS) mechanism that was highly criticised in Germany, where demonstration against the Transatlantic Trade and Investment Partnership (TTIP)[2], the CETA and also the Trade in Services Agreement (TiSA) were raising[3]. In Germany, on 10 October 2015, 250,000 people[4] according to the police demonstrated in Berlin[5], for what has been up to now the biggest demonstration in the German capital city for more than twenty years and the raise of the anti-nuclear movement in Germany. The election of the new social-liberal Canadian Prime Minister Justin Trudeau, end of 2015, set the scene for the EU to convince Canada to agree to introduce the EU new approach on investment protection and investment dispute settlement on February 2016, aiming at – in the medium and long terms – establishing a permanent multilateral investment court[6], this new approach having already been proposed by the EU to the United States (US) within the TTIP negotiations in November 2015, and included for the first time in a Free Trade Agreement (FTA) within the EU-Vietnam FTA, signed in December 2015.

This was nevertheless not enough for a political success to reassure the German public opinion, whose scepticism regarding the agreement remained high during the first half of 2016. This political pressure undoubtedly played a role when the European Commission proposed the Council of the EU the CETA to be a mixed agreement on 5 July 2016[7]. After the legal scrubbing and translation process in all the twenty-four official languages of the EU being achieved, the CETA was finally signed on October 2016 and ratified by the European Parliament on February 15th 2017[8]. The Latvian Parliament did the same on 23 February, followed by the Danish one on 1 July and the Spanish one on 29 July. Canada ratified it on 17 May 2017.

The fundamental importance of the German internal political context

The first factor playing a significant role in the existence of some nuances in the German positioning on Trade Policy is the existence of a governing “Grand Coalition”, which resulted from the Federal Elections of September 2013: the Christian Democratic Union (CDU) from Chancellor Merkel has always clearly been in favour of a quick conclusion of both CETA and TTIP[9]. This position was – at least since last summer 2016, especially on TTIP – not shared by the junior coalition partner, the Social Democratic Party (SPD), led at that time[10] by the vice-Chancellor and Minister for Economic Affairs and Energy, Sigmar Gabriel. On CETA, if Minister Gabriel himself has always considered this agreement (especially since the inclusion of the EU new approach on investment protection and investment dispute settlement) as a positive agreement, he nevertheless always had to try to convince the left wing of his party – which has largely been reluctant to it[11] – on the benefits of CETA. These internal political factors were furthermore catalysed by the upcoming of the federal election campaign, which took place on 24 September 2017.

On the proceedings before the German Federal Constitutional Court

An issue which far exceeds the sole interests of Germany

On 30 August 2016, two separates collective complaints (respectively 125 000 and 68 000 people) and another one from the parliamentary group « Die Linke » were directed in the form of applications for a preliminary injunction against the approval by the German representative in the Council of the EU of the signing, the concluding and the provisional application of the CETA, which the Council of the EU was expected to decide upon on 18 October 2016. Their arguments were based on presumed infringements to their rights based on article 38 section 1 (provisions on the election to the Bundestag), art. 79 sec. 3 (provisions on amendment of the Basic Law) and art. 20 sec. 1 and 2 (provisions on Constitutional Principles) of the German Federal Constitution (Grundgesetz).

On 12 October 2016, the Federal Constitutional Court conducted an oral hearing in the presence of the then Federal Minister for Economic Affairs and Energy, Sigmar Gabriel[12]. The day after, on 13 October, the applications for a preliminary injunction in the CETA proceedings were found unsuccessful: this led to the authorisation for the German representative to give his consent to the Council to sign, to conclude and to provisionally apply the CETA. According to the Federal Constitutional Court (and that was one of the main arguments of the Minister for Economic Affairs during the oral hearings), refusing to sign the CETA would indeed sensitively undermine the room of manoeuvre of the EU and Germany in the world economy and on the world stage. The Minister himself warned before the Court against Germany’s reputation, which would be damaged if it derailed the deal: “I don’t want to think about the consequences that it could have for Europe”. The Court was quite sensitive to this argument, as it explicitly refers to it no less than three times[13] throughout the decision script.

The distribution of competences are at the heart of three conditions laid down by the Federal Constitutional Court

The Federal Constitutional Court decided that it is only under three conditions that the Federal Government can sign, conclude and provisionally apply the CETA, which clearly places the distribution of competences between the EU and its Member States at the centre of its ruling. These three conditions are:

  1. That a Council decision on provisional application will only apply to those parts of the CETA that lie indisputably within the scope of the competences of the EU;

 

  1. That until the Federal Constitutional Court renders a decision in the principal proceedings, sufficient democratic legitimacy with regard to the decisions of the CETA Joint Committee is ensured, and;

 

  1. That the interpretation of Art. 30.7 sec. 3 lit. c of the CETA allows Germany to unilaterally terminate the provisional application of the Treaty.

It seems particularly relevant to focus on the first condition, as it is at the heart of the issue of distribution of competences, this condition being furthermore interdependent with the third one.

At a first glance, one can notice that the first and the third conditions could appear slightly contradictory, as they seem to a certain extent to undermine the agreed distribution of competences between the EU and its Member States. Considering indeed that it is only within the exclusive competences of the EU that provisional application [in the sense of art. 218 sec. 5 of the Treaty on the Functioning the EU (TFEU)] can be decided (first condition laid down by the Federal Constitutional Court) should lead us to the evident conclusion that only the EU can put an end to provisional application, and not the Member States on a unilateral basis. The Federal Court nevertheless asserts the contrary in the third condition. While following this delicate parallelism, the challenge is to know (a) which part of the CETA will be, through the Council of the EU, subject to provisional application and (b) to what extent can Germany unilaterally terminate the provisional application of the agreement. The second condition, that is (c) that until the Federal Constitutional Court renders a decision in the principal proceedings, sufficient democratic legitimacy with regard to the decisions of the CETA Joint Committee is ensured, appears to be to a lesser extent at the heart of the issue of competences between the EU and it Member States, not to mention that the application of this second condition is not likely to materialise.

  1. a) Which part of the CETA will be subject to provisional application?

Two different kinds of competences are at stake:

-The “EU exclusive competences”, that can be provisionally applied after the ratification of the European Parliament[14] and before the beginning of the Member States internal ratification processes;

-The “non-EU exclusive competences”, which provisional application can potentially be subject to the qualification of either an “ultra vires act” or an infringement on the German “constitutional identity” (sec. 67 of the decision).

The Federal Constitutional Court explicitly decided that “among others the [EU] competence to conclude an agreement on portfolio investment [that is non-foreign direct investment], investment protection [Chapters 8 and 13 CETA], international maritime transport [Chapter 14 CETA], mutual recognition of professional qualifications [Chapter 11 CETA] and protection of workers [Chapter 23 CETA] is missing” (sec. 52 of the decision) and that these provisions “are not covered by the provisional application” (sec. 70). This precise and clear division of competences only let to the Federal Government little room for manoeuvre and led it to secure that these provisions remain outside the scope of the provisional application of the CETA. The Commission, the Council, the Member States and the Legal Service of the Council then added to the Council Decision on the signature of the CETA of 26 October 2016 no less than 38 Statements and Declarations aiming at understanding and interpreting the CETA (all included to the Council Decision of 27 October)[15]. This includes Statements on portfolio investment and investment protection (Statement 36 by the Commission and the Council on investment protection and the Investment Court System – ‘ICS’ – attached to the EU Council Decision), on international maritime transport (Statement 3 from the Council), on mutual recognition of professional qualifications (Statement 16 from the Council), and on protection of workers (Statements 4 and 17 from the Council). All these Statements follow the same pattern, that is to ensure that the Council Decision declares that its decisions, falling within the scope of shared competences between the EU and the Member States, do not prejudge the allocation of competences between them in these fields and do not prevent the Member States from exercising their competences with Canada for matters not covered by this Agreement, or with another third country in the fields falling within the said scope.

More generally, in its Statement 15, the Council “confirms that only matters within the scope of EU competence will be subject to provisional application”[16], while a Joint Interpretative Instrument[17], containing notably provisions on investment protection (paragraph 6) and on labour protection (para. 8) was also adopted by the parties on the occasion of the signature of CETA, this Joint Interpretative Instrument being legally binding (Statement 36 by the Council Legal Service).

This different provisions led the German Federal Constitutional Court to confirm, on the occasion of a second ruling on urgent proceedings on 7 December 2016[18], that the Federal Government fulfilled the three conditions laid down by the Court in its ruling from 13 October 2016 on the signing, the concluding and the provisional application of the CETA. This ruling was the occasion for the Court to explicitly reproduce word for word and in its entirety to the above-mentioned statements and to the Joint Interpretative Instrument[19].

Two main paradoxes could nevertheless potentially lead to subsequent difficulties in terms of division of competences. The Federal Constitutional Court took a precaution that can somewhat appear to be superfluous as it directly linked the fate of its case on the applications for a preliminary injunction in the CETA proceedings to the Opinion 2/15 even if the EU-Singapore FTA (EUSFTA)[20], which was at that time still pending before the Court of Justice of the European Union (CJEU). In its ruling of 13 October, the Federal Constitutional Court indeed asserted that (sec. 15[21]) “it’s only when the CJEU Opinion 2/15 is rendered that necessary conclusions must be drawn”. Yet, on its proposal for the signature and conclusion of EU-Canada trade deal from 5 July 2016, the Commission clearly dissociated – at least from a legal point of view – the mixed nature of CETA and the (at the time) future conclusions of the CJEU on the Opinion 2/15[22]. Furthermore, in its ruling from 13 October, the Federal Constitutional Court allowed the German Federal Government to “refuse the provisional application for matters which, in its view[23], are Member States matters” (sec. 70). In spite of it, the Court nevertheless explicitly and precisely states that “among others the [EU] competence to conclude an agreement on portfolio investment [that is non-foreign direct investment], investment protection, international maritime transport, mutual recognition of professional qualifications and protection of workers is missing” (sec. 52[24]). This apparent contradiction is a source of uncertainty which is reinforced by the fact that the opinion rendered by the CJEU on 16 May doesn’t go along the same line, requiring that only non-foreign direct investment and dispute settlement between investors and States “do not fall within the exclusive competence of the EU”[25](see infra. title 6).

  1. b) To what extent can Germany unilaterally terminate the provisional application of the CETA?

Should the scenario of a unilateral termination of provisional application occur[26], the Federal Constitutional Court requires it to be done through, at once (i) very clear international public law explanations and (ii) a written notice to the parties to the treaty (knowing that, according to the Federal Constitutional Court, the term “parties[27]” not only includes the EU but also every single EU Member States.

As for the question to know which part of the CETA will be subject to provisional application, the possibility for Germany to unilaterally terminate the provisional application of the CETA is secured through Statements 20 (from the Council)[28] and 21 (by Germany and Austria)[29] added to the Council Decision on the signature of the CETA of 26 October 2016[30]. These Statements are reproduced in the sec. 12 of the Federal Constitutional Court ruling of 7 December 2016.

Some German scholars, like Prof. Krajewski[31] (Erlangen) consider that such a unilateral termination would be contrary to EU Law. Prof. Weiβ[32] (Speyer) considers that at the very most, only a formal and explicit EU authorisation for the EU Member States to unilaterally proceed so could be compliant with EU law.

  1. c) Until the Federal Constitutional Court renders a decision in the principal proceedings, sufficient democratic legitimacy with regard to the decisions of the CETA Joint Committee has to be ensured.

This second condition laid down by the Federal Constitutional Court on 13 October – that is that until the German Federal Constitutional Court renders a decision in the principal proceedings, sufficient democratic legitimacy with regard to the decisions of the CETA Joint Committee has to be ensured – seems to be less problematic in light of distribution of competences. One can indeed expect that no decision will be taken by the Joint Committee in the near future, at least not before the decision of the Federal Constitutional Court will be taken in the principal proceedings (which is the raison d’être of this requirement). Should this scenario nevertheless materialise, the Commission provided satisfactory guarantees to Karlsruhe through the Commission Declaration 18[33] and the Statement 19 (from the Council and the Member States)[34] added to the Council Decision on the signature of the CETA of 26 October 2016. These declaration and statement are reproduced in the sec. 12 of the Federal Constitutional Court of ruling of 7 December 2016.

Next step: the decision in the principal proceedings

The Federal Constitutional Court probably put an end once and for all to the suspense of urgent motions related to CETA on 7 December 2016, as it decided in the framework of a second urgent proceeding that the Government properly took into account the three conditions set in its decision from 13 October 2016. Unlike its first decision, the Court didn’t conduct oral hearings and rendered its decision through a quite brief statement. The question of ratification remains nevertheless politically sensitive, especially in light of the federal structure of Germany. The German Federal Constitutional Court will probably rule in the principal proceedings before the beginning of the internal ratification process.

After two first emergency rulings, the question the Federal Constitutional Court will have to answer is to know if CETA is inconsistent to the German Basic Law. Should the Treaty be consistent to the German Basic Law, the federal constitutional judges will nevertheless have to pave the way to possible interpretations of the CETA without reopening negotiations and knowing moreover that the European Parliament, three EU Member States and Canada have already ratified it[35] and that the provisional application of the agreement would probably have been launched[36].

The internal ratification process: Zustimmungsgesetz v Einspruchsgesetz

The form of ratification by the German parliament is not decided yet. It is highly likely that a Consent Act ( Zustimmungsgesetz[37]) will be the chosen procedure. According to many German officials, there is little doubt that the German internal ratification of the CETA will have to be ratified by both the Bundestag and the Bundesrat through the form of a Zustimmungsgesetz (most probably based on Article 59 para. 2 of the German Basic Law[38]), meaning that the consent of the Bundesrat is compulsory[39]. Two main arguments seem to be in favour of a Zustimmungsgesetz : (i) the fact that the CJEU considers in its Opinion procedure 2/15 about the EUSFTA that “The provisions of the agreement relating to non-[foreign] direct investment and those relating to dispute settlement between investors and states do not fall within the exclusive competence of the EU, so that the agreement cannot, as it stands, be concluded without the participation of the Member States” leads for one of the first so-called new generation of comprehensive FTAs to me a mixed one (that is to be ratified by the EU Parliament and by all the EU Member States)[40]. That said, a solid legal basis for the vote of the Bundesrat to be proceeded through a Zustimmungsgesetz could be the Art. 84 sec. 1 phrase 6 of the Basic Law[41] concerning the Federal oversight of the Länder administration as CETA contains rules of administrative procedures from which the Länder are not allowed to derogate.

The issue of ratification of CETA remains politically sensitive for the German public opinion in light of the internal distribution of competences between the Bund and the Länder (especially regarding local public services issues, the privatisation of water supply and the issue of “remunicipalisation” (“Rekommunalisierung”) of public services, that is the return of previously privatised public services (in general water supply, a particularly sensitive area in Germany, and sanitation services) to municipal authorities, were highly debated in the public opinion and criticised by the Association of German Cities[42].

  • Conclusion: salami slicing v two-stage rocket – On the future of EU Trade Policy

 

The German Federal Constitutional Court went quite far in thee designing of division of competences between the EU and Germany. By asserting that no less than five different categories of provisions are not “EU-only” competence [i.e. (i) portfolio investment, (ii) investment protection, (iii) international maritime transport, (iv) mutual recognition of professional qualifications and (v) protection of workers, it makes it virtually impossible to set agreements that are not mixed, that is that only need to be ratified by the EU Parliament and the partner country with which the EU signed an agreement. The message sent by Karlsruhe is clear: the diversity and the plurality of the issues at stake in new generation of comprehensive FTAs make them necessary to be ratified by each EU Member States.

If the Opinion 2/15 on the EUSFTA[43] concludes that provisions aiming at implementing a regime relating to non-foreign direct investment[44] and dispute settlement between investors and states[45] cannot be of a purely ancillary nature within the meaning of the case-law recalled in paragraph 276 of this opinion and cannot, therefore, be established without the Member States’ consent, it nevertheless technically makes it possible to split the agreement into two parts which are relatively easily two distinguish, that is, on the one hand, the investment part and, on the other hand, all the other provisions of the agreement. On the contrary, according to the German Federal Constitutional Court, even if removing all the investment aspects of the agreement, three kind of provisions remain: (i) international maritime transport, (ii) mutual recognition of professional qualifications and (iii) protection of workers, all provisions which are clearly “EU exclusive competences” for the CJEU whereas they are shared for the German Federal Constitutional Court.

This sensitively different result (‘salami slicing’ for Karlsruhe v ‘two-stage rocket’ for Luxembourg) could lead to potential subsequent difficulties in terms of delimitation of competences between the EU and its Member States in the realm of trade policy. The scenario of a reference for a preliminary ruling (art. 267 para. 1 TFEU), just used once by the German Federal Constitutional Court in the context of the OMT ruling in 2014, is possible, given the complexity and plurality of the issues at stake and especially given the difficulty for the Federal Constitutional Court to rule in isolation on an issue concerning the global role of the EU.

In case of a reference for a preliminary ruling, then the question would be the one of the length of the ratification process: it took seventeen months (January 2014-June 2015) for the CJEU to rule to limit the scope of the OMT programme. A similar period would mean that Germany wouldn’t launch its internal ratification process before 2019, so that until this point, only the provisional application of the CETA will take place[46].

The Commission already stepped into the breach of the Opinion 2/15 as it currently[47] leads informal consultations among the EU Member States aiming at knowing if they would support a split into two parts of trade agreements: (i) an investment treaty (including the issue of portfolio investments and investment protection/dispute settlement between investors and States and (ii) so-called “revised” trade agreement of a new generation (including all the other kinds of provisions but the ones dealing with investment).

The current debate on CETA is to be linked to other international trade issues having a major impact on the historical and fundamental EU trade policy. Among these it is worth quoting the discussion on intra-EU investment protection agreements, as well as other trade politically debated issues like investments protection, public procurements – and their overarching place in free trade agreements as well as the modernisation of trade defence instruments. Last but not least, dispensing with the approval of national parliaments at a time when populist movements are flourishing within the EU and in the context of ‘Brexit’ negotiations could rather weaken the European project as reinforcing it. One of the solutions to avoid further possible institutional blockings, like the Walloon episode[48], and to more generally positively and dynamically address the question of division of competences between the EU and its Member States could be to associate more closely national parliamentarians to EU fundamental issues like CETA, by setting up an “Economic and Trade” assembly, partly composed of national and of European members of parliaments and which would deal with Trade, Economic and Monetary Union issues (in a reduced form for the Monetary issues, as the eurozone consist of fewer Member States as the EU). This would be done in conjunction with a more transparent and institutionalised dialogue with the civil society on trade issues.

[1] The first round of negotiations took place from 19-23 October 2009 in Ottawa. Then eight other rounds followed: 18-22 January 2010 in Brussels, 19-23 April 2010 in Ottawa, 12-16 July 2010 in Brussels, 18-22 October 2010 in Ottawa, 17-21 January 2011 in Brussels, 11-15 April 2011 in Ottawa, 11-15 July in Brussels 17-21 October 2011 in Brussels. After these nine negotiation rounds, with general progress made across all sectors, the negotiations process evolved to a more intense phase (“the political phase”): Canadian and EU Trade and Agriculture Ministers notably met in this respect in Brussels in November 2012, before the parties concluded negotiations on 18 October 2013, and reached an agreement on a text on 5 August 2014.

[2] Which negotiations were launched in 2013.

[3] Demonstrations also took place in three other EU Member States, that is Luxemburg, Slovenia and Austria.

[4] 350,000 people according to the organisers.

[5] Der Spiegel, 10 October 2015 (http://www.spiegel.de/wirtschaft/unternehmen/ttip-demonstration-in-berlin-stellt-teilnehmerrekord-auf-a-1057187.html).

[6] This new approach has particularly been backed by the French and German Governments.

[7] See the EU Commission Proposal for a Council Decision, 5.7.2016 COM(2016) 470 final.

[8]The EU Parliament approved the deal by 408 votes to 254, with 33 abstentions (http://www.europarl.europa.eu/news/en/press-room/20170209IPR61728/ceta-meps-back-eu-canada-trade-agreement).

[9] It is only for the first time on 17 November 2016 that Chancellor Merkel admitted that the TTIP cannot be concluded in its current form, while nevertheless continuing to politically strongly support the principle of concluding an agreement with the United States of America.

[10] From 13 November 2009 to 17 March 2017.

[11]The timetable accelerated end of September 2016, at a time when Minister Gabriel has clearly tied his political future to the success on the issue of CETA : On 17 September, a majority of SPD delegates (around two-thirds of the 218 SPD delegates), voted in support of the CETA at the SPD convention in Wolfsburg (Lower Saxony) after its leader Sigmar Gabriel has managed to find a compromise within its party. The motion adopted by the SPD made clear that through its internal ratification process, Germany must still be able to have an influence on the content of CETA. The question remains to know how legally binding would that be. Different possibilities exist: an interpretative instrument, which has in principle no legal impact on the content of the agreement or the formulation of reservations, which can have some and which can potentially lead the signing Member States to refuse to apply some provisions of the agreement. The day before the convention, The SPD leader went to Canada to secure the principle to enclose legally binding clarifications to the CETA (which contributed to secure the convention’s vote the day after), while agreeing with Canadian Prime Minister Trudeau that negotiations won’t be reopened. On 18 September, Minister Gabriel and the Canadian Federal Minister for International Trade Chrystia Freeland signed a Joint Declaration entitled “Progressive Trade Policy – CETA and beyond” (https://www.bmwi.de/Redaktion/DE/Downloads/G/gemeinsame-erklaerung-fortschrittliche-handelspolitik-ceta-und-darueber-hinaus-english-version.pdf?__blob=publicationFile&v=6). This dense movement led to the adoption by the Bundestag (lower house), on 21 September, of a Grand Coalition common motion (CDU/CSU and SPD) paving the way to the signing, the concluding and the provisional application of the CETA (Bundestag, Drucksache 18/9663; http://dip21.bundestag.de/dip21/btd/18/096/1809663.pdf).

[12] Minister Gabriel, although not being a lawyer himself, defended the Government Position in favour of the CETA for no less than two hours before the Federal Constitutional Court: it was the first time in Germany that a Federal Minister for Economic Affairs argued before the Federal Constitutional Court, what further demonstrates the political importance of this debate in Germany.

[13] Section 31 : “This can significantly affect the German and European capacity to act in the realm of trade issues and have negative consequences for the competitiveness of the German and European industries as well as for the citizens“ ; sec. 47 : “a preliminary injunction which would prevent the federal government to take part to the vote on the provisional application of the CETA would result in a significant extent in undermining the freedom of designing of the Federal Government – which is in principle wide – in the realm of the European, Foreign and External Economic policies”. The Court also extends this argument to the whole EU in the following section of its decision: “This also applies in a similar way to the European Union. A failing of applying the CETA – should it be a temporary one – may affect the external relations between the European Union and Canada and even more extensively the negotiation and conclusion of future free trade agreements. […] This concerns in particular the political efforts of the European Union and its Member States to have a stable influence on the shaping of global trade relations, in order to reinforce the effectiveness of the EU values which are enshrined in the legal system of the Union”.

[14] If the EU Parliament ratified the CETA on 15 February 2017 (approved by 408 votes to 254, with 33 abstentions), the provisional application of the treaty also depends on the developments of the ratification process in Canada, knowing that the provisional application of CETA can only start when the treaty has also been ratified by Canada. As the Canadian legal system is a dualist one, this implies different steps to be completed: (i) Preparation, by the Cabinet, of an Order-in-Council authorizing the Minister of Foreign Affairs to sign an instrument of ratification or accession; (ii) Federal implementing legislation (treaties having to be implemented in Canadian law in order to have legal effect): an implementing bill is tabled in the Canadian House of Commons (lower house); the implementing bill contains the changes required to Canadian law at the national level to implement the provisions of the treaty; (iii) Provincial/territorial implementing legislation: it may be possible that implementing legislation is also required at the provincial level; (iv) Regulatory changes: new regulations and/or changes to existing regulations are often required to implement treaty provisions. The provisional application of CETA in both Canada and the EU is then supposed to start on 21 September 2017.

[15] Council Decision of 26 October 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part (10972/1/16 REV, OJ Council document ST10973/16, INIT and Addenda 1 to 15; plus Council document(s) 13541/16 and 13463/1/16 REV 1).

[16] 13463/1/16 REV 1, page 13.

[17] Joint Interpretative Instrument on the [CETA] between Canada and the European Union and its Member States, 27 October 2017 (13541/16).

[18] DE:BVerfG:2016:rs20161207.2bvr144416.

[19] Ibid, sec. 11 (mentioning the importance of the 38 statements and declaration) and sec. 12 (mentioning all the relevant statements and declarations).

[20] Opinion procedure 2/15, EU:C:2017:376.

[21] DE:BVerfG:2016:rs20161013.2bvr136816.

[22] “The Commission has decided to propose CETA as ‘mixed’ agreement. This is without prejudice to its legal view, as expressed in a case currently being examined by the European Court of Justice concerning the trade deal reached between the EU and Singapore” (see the Commission Press Release from 5 July 2016, IP/16/2371: http://europa.eu/rapid/press-release_IP-16-2371_en.htm).

[23] Voluntarily highlighted by the author.

[24] Ibid.

[25] EU:C:2017:376.

[26] The provisional application of the CETA is about to start on 21 September 2017 (EU-Canadian Statement STATEMENT/17/1959 of 7 July 2017).

[27] Voluntarily highlighted by the author.

[28] “If the ratification of CETA fails permanently and definitively because of a ruling of a constitutional court, or following the completion of other constitutional processes and formal notification by the government of the concerned State, provisional application must be and will be terminated. The necessary steps will be taken in accordance with EU procedures” (13463/1/16 REV 1, page 14).

[29] “Germany and Austria declare that as parties to CETA they can exercise their rights which derive from article 30.7(3)(c) of CETA. The necessary steps will be taken in accordance with EU procedures” (13463/1/16 REV 1, page 14).

[30] Council Decision of 26 October 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part [10972/1/16 REV, OJ Council document ST10973/16, INIT and Addenda 1 to 15; plus Council document(s) 13541/16 and 13463/1/16 REV 1].

[31] Markus Krajewski, “Spielstand nach dem CETA-Beschluss: 2:2, und Karlsruhe behält das letzte Wort”, Verfassungsblog, 13 October 2016.

[32] Wolfgang Weiβ, “Gutachten zur Realisierbarkeit von Präzisierungen des CETA von EU, Kanada und Mitgliedstaaten abgegebene gemeinsame Auslegungserklärung”, 12 September 2016.

[33] “It is noted that it is unlikely that any decision amending CETA and any binding interpretation of CETA adopted by the CETA Joint Committee will be required in the near future. Therefore the Commission does not intend to make any proposal under Article 218(9) with a view to amending CETA or with a view to adopting a binding interpretation of CETA before completion of the main proceedings before the German Constitutional Court” (13463/1/16 REV 1, page 14).

[34] “The Council and the Member States recall that where a decision of the CETA Joint Committee falls within the competence of the Member States the position to be taken by the Union and its Member States within the CETA Joint Committee shall be adopted by common accord” (13463/1/16 REV 1, page 14).

[35] The EU Parliament ratified it on 15 February 2017, then Latvia (23 February), Canada (17 May), Denmark (1 June) and Spain (29 June).

[36] In France, after the Conseil Constitutionnel ruled on 31 July 2017 that the CETA was not unconstitutional (FR:CC:2017:2017.749.DC), an evaluation panel on the impact of CETA, composed of nine experts and set up on 6 July 2017, handed over their report to the Government on 8 September 2017. One of the task of this evaluation panel was “to make recommendations to address the negative effects which would be anticipated” (http://www.gouvernement.fr/sites/default/files/document/document/2017/07/communique_de_presse_de_m._edouard_philippe_premier_ministre_-_installation_de_la_commission_devaluation_de_limpact_du_ceta_-_06.07.2017.pdf).

[37] Art. 77 and 78 of the German Federal Constitution.

[38] “Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. In the case of executive agreements, the provisions concerning the federal administration shall apply mutatis mutandis”.

[39] Scenarios where a Zustimmungsgesetz is needed are always explicitly mentioned in the German Basic Law. 58 different provisions (across 26 articles) of the Basic Law require a Zustimmungsgesetz. These provisions can be classified into three different categories of provisions: the ones modifying the Constitution, the ones which have a significant impact on the finances of Länder and the ones for which the implementation has an impact on the administrative organisation and sovereignty of the Länder. Among other examples: transfer of sovereignty to the EU (art. 23, sec. 1), modification of the Basic Law (art. 79, sec.2), order management of nuclear energy (art. 87 c.) and aviation (art. 87 d, sec. 2), safeguard of postal and telecommunication services (art. 87 f, abs. 1), basic social insurance for jobseekers (art. 91 e, sec. 3) or financial aid from the federal State (art. 104 b, sec.2). All other cases for which the participation of the Bundesrat is expected take the form of an objection act (Einspruchsgesetz) for which the objection of the Bundesrat can be overruled by the absolute majority (or a two-third majority if a majority of two-third is reached in the Bundesrat).

[40] That is a total of 43 parliaments (the EU Parliament, 28 national and 14 regional/local parliaments).

[41] “Such laws shall require the consent of the Bundesrat”.

[42]

See notably (in German http://www.staedtetag.de/presse/beschluesse/079179/index.html.

[43] EU:C:2017:376, 16 May 2017.

[44] Id., para. 238.

[45] Id., para. 292.

[46] On the assumption that the provisional application of CETA will start on 21 September 2017.

[47] On the date of 11 September 2017.

[48] End of October 2016, the Walloon Parliament temporarily blocked the process of the signing of the CETA which led to postpone the signing ceremony.

 

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