- On 30 October 2016 Canada, of the one part, and the European Union and its Member States, of the other part, signed in Brussels a ‘Comprehensive Economic and Trade Agreement’, better known by the acronym ‘CETA’.
- Like, inter alia, the agreement to which Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017 relates, the CETA is a ‘new generation’ free trade agreement in that it contains, in addition to the classical provisions on the reduction of customs duties and of non-tariff barriers to trade in goods and services, rules relating, inter alia, to investment, public procurement, competition, intellectual property protection and sustainable development.
- Although it has been signed, the CETA has not yet been concluded within the meaning of Article 218(6) TFEU. It is, however, partly applicable on a provisional basis.
- The present case concerns a request for an opinion submitted to the Court on 7 September 2017 by the Kingdom of Belgium pursuant to Article 218(11) TFEU.
- The request for an opinion submitted by the Kingdom of Belgium reads as follows:
‘Is Chapter 8 (‘Investments’), Section F (‘Resolution of investment disputes between investors and states’) of the [CETA] between Canada, of the one part, and the European Union and its Member States, of the other part, signed in Brussels on 30 October 2016, compatible with the Treaties, including with fundamental rights?’
- The purpose of Section F of Chapter 8 of the CETA, which contains Articles 8.18 to 8.45 of that agreement, is to establish a mechanism for the resolution of disputes between investors and States (ISDS), also known as the Investor-State Dispute Settlement system.
- To that end, that section provides for the establishment of a Tribunal (‘the Tribunal’ or ‘the CETA Tribunal’) and an Appellate Tribunal (‘the Appellate Tribunal’ or the ‘the CETA Appellate Tribunal’) as well as, in the longer term, a multilateral investment tribunal and appellate mechanism which would bring to an end the functioning of the initial tribunals. The aim is thus to establish an ‘Investment Court System’ (ICS), of which the CETA Tribunal would be merely a first stage. That Tribunal would therefore constitute the first actual step to implement the reform of the ISDS system outlined by the European Commission in 2015, in response to the public consultation on investment protection and ISDS. Section F of Chapter 8 of the CETA thus provides for an institutionalised procedural framework with the aim of settling any disputes between an investor of one Party and the other Party concerning the interpretation and application of the CETA, which is intended to remedy the shortcomings ascribed to the classical ISDS system.
- By introducing that reformed mechanism within the CETA, the European Union is supporting the initiative of a global reform of the model for settling disputes between investors and States through the development of the current ad hoc ISDS system, which is based on the principles of arbitration, into an ICS, the culmination of which would be the establishment of a permanent multilateral court.
- In its request for an opinion, the Kingdom of Belgium makes known to the Court its doubts as to whether Section F of Chapter 8 of the CETA is compatible with the Treaties. In essence, those doubts concern the effects of that part of the agreement on the exclusive jurisdiction of the Court over the definitive interpretation of EU law, the general principle of equal treatment, the requirement that EU law is effective and the right of access to an independent and impartial tribunal.
In the light of all the foregoing considerations, I propose that the Court should give the following opinion:
Section F of Chapter 8 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, establishing an investment dispute resolution mechanism between investors and States, is compatible with the Treaty on European Union, the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union.