Law professors, legal experts and the European and German associations of judges believe that the controversial investment court system (ICS) in the CETA free investment and trade deal, is not legal under EU law. On Wednesday 23rd November 2016, MEPs will be asked to vote at the European Parliament, Yes or No to a resolution seeking an opinion from the European Court of Justice as to whether ICS is compatible with EU law.
There will already be a vote this Monday 21 November on even getting a debate on this motion on the plenary agenda. If the Parliament establishment refuses to even have a debate, chances that a majority supports a legality check are even lower. We must target our elected representatives with messages as soon as possible !
All MEPs must make public statements on this matter, and at the very least commit to not obstructing this request for a legal opinion. The resolution has been drafted by 89 MEPs from five political groupings from across the political spectrum and is supported by both pro-CETA and anti-CETA MEPs who are concerned that here in Europe we must be seen to proactively stay within the boundaries of constitutional democracy and the rule of law.
While the recent concessions won by the regional parliaments of Belgium as to how the CETA would impact on farming there, many Europeans got the impression that the Belgium government will ask the ECJ for a ruling on ICS. While they are legally committed to doing so, there is no legal commitment to enforce them to take that case now. The European Parliament will most likely be asked to vote to approve the CETA deal around December 14th , and after that date, neither the Parliament, nor the Belgian government will be able to invoke Article 218.11 of EU law which empowers them to ask the ECJ to clarify whether ICS is legal or not. It will be too late!
Article 218.11 of TFEU explicitly refers to “the agreement envisaged”; in other words, one that has not been approved. December’s Parliament vote will be on provisionally applying CETA, which means it is fully in law and no longer “envisaged”. As Article 30.7.4(d) of CETA clearly states: “the Parties shall understand the term ‘entry into force of this Agreement’ as meaning the date of provisional application” .
Commission employees claim ICS is illegal:
With relation to ICS, even employees within European Commission have stated in their ‘Working Document on the free movement of capital in the EU’ from 2013 that:
“This form of international arbitration is incompatible with the exclusive competence of EU courts to rule on the rights and obligations of Member States under EU law.”
(Based on this article by ATTAC Ireland, very much worth reading in full)