12 PQ’s for the government to answer relating to the imminent Irish and EU Constitution crisis due in July 2016, should the Council of Minsters vote by QMV to approve the Commission’s proposal to conclude and provisionally apply the CETA and its ISDS.
Article 29.5.2 of the Irish constitution declares:
“The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann”.
Article 67 of the TFEU declares:
“The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”.
Article 30.7.4(d) of CETA declares that:
“the Parties shall understand the term ‘entry into force of this Agreement’ as meaning the date of provisional application”.
Article 30.8.4 of CETA says that if the CETA is provisionally applied, and then that provisional application is withdrawn, Canadian companies, or Canadian-owned European companies, would still have three years in which to take ISDS cases against the EU and the member states; to quote the Article:
“ [ … ] if the provisional application of this Agreement is terminated and this Agreement does not enter into force, a claim may be submitted under Section F of Chapter Eight (Investment) within a period no longer than three years following the date of termination of the provisional application, regarding any matter arising during the provisional application of this Agreement, in accordance with the rules and procedures established in this Agreement” (CETA, 2016).
1. Does the government know on what date the European Commission will present a proposal to the Council of Ministers asking the Council to vote to give the Commission the authority to sign-off on the final text of the CETA with the Canadian government [i.e. “adopt a decision concluding the agreement” as per TFEU Article 218.6]?
2. When will the government get access to the wording of this “proposal” to conclude CETA?
3. Will the government make public, the Commission’s CETA “proposal” prior to the Council’s vote on it?
4. Given that the Commission’s stated intention is to ask the Council for permission to “provisionally apply” the CETA [as per TFEU Article 218.5] at the same time as it is asking the Council for permission to sign-off on, or conclude, the final text of the CETA agreement , will the government now make public, their position as to “provisionally applying” the CETA?
5. Does the government realise that Article 29.5.2 of the Irish constitution places a constitutional imperative on the Irish state to have “any international agreement involving a charge upon public funds” to be “approved by Dáil Éireann” and that as such, should the Council of Ministers vote by a Qualified Majority Vote to approve the signing and provisional application of CETA, that considering the ISDS mechanism of CETA is designed specifically to allow for “a charge upon public funds”, that this would thus create a constitutional crisis for Ireland and the EU, whereby Ireland, an EU Member State, could be the subject of ISDS cases which lead to “a charge upon public funds” prior to Dáil Éireann approving the CETA?
6. Given that Article 30.7.4(d) of CETA declares that, “the Parties shall understand the term ‘entry into force of this Agreement’ as meaning the date of provisional application”, how can the government claim that CETA and its ISDS will not be enforced upon Ireland prior to the CETA being “approved by Dáil Éireann”.
7. Given that, Article 218.5 of the Treaty on the Functioning of the European Union (TFEU) declares that: “The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force”, can the government explain what necessity test [re: TFEU 218.5: “if necessary”] they are using to inform their thinking on the provisional application of CETA?
8. Given that the European ‘Commission Staff Working Document on the free movement of capital in the EU , SWD (2013) 146 final’ states that, with relation to a private company using an intra-EU member state ISDS mechanism: “Such agreements clearly lead to discrimination between EU investors and are incompatible with EU law. … 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. In contrast to national courts, arbitral tribunals are not bound to respect the primacy of EU law and, in case of doubt, are neither required nor in a position to refer questions to the CJEU [Court of Justice of the European Union] for a preliminary ruling”, how can the government explain its position that the ISDS of CETA is compatible with EU law?
9. Given that the European Commission’s legal service has made amicus curiae submissions to ISDS cases involving intra-EU bilateral investment treaties (BITs) in order to make their legal case that ISDS is incompatible with EU law [See for example: U.S. Steel Global Holdings I B.V. v Slovak Republic, UNCITRAL, (PCA Case No. 2013-16); and, European American Investment Bank AG (EURAM) v. Slovak Republic, UNCITRAL, (PCA Case No. 2010-17); and, Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID (Case No. ARB/05/20], can the government explain its position that the ISDS of CETA is compatible with EU law; and in this regard can the government explain why it does not invoke Article 218.11 of the TFEU and ask the ECJ to deliver a legal ruling as to whether or not ISDS is compatible with EU law?
[See reference material on the above question here: Commission, 2013. Commission Staff Working Document on the free movement of capital in the EU , SWD (2013) 146 final. Available at: http://ec.europa.eu/finance/capital/docs/reports/2013-market-monitoring-working-document_en.pdf (03-06-16).]
10. Given that the European Commission is engaged in legal action at the ECJ against five member states requiring that they terminate their intra-EU BITs because ISDS contravenes the principles of the single market, and they argue thus: “ [ … ] all Member States are subject to the same EU rules in the single market, including those on cross-border investments (in particular the freedom of establishment and the free movement of capital). All EU investors also benefit from the same protection thanks to EU rules (e.g. non-discrimination on grounds of nationality). By contrast, intra-EU BITs confer rights on a bilateral basis to investors from some Member States only: in accordance with consistent case law from the European Court of Justice, such discrimination based on nationality is incompatible with EU law. [ … ] [I]ntra-EU BITs fragment the single market by conferring rights to some EU investors on a bilateral basis”, can the government explain how on the one hand intra-EU BITs with ISDS promote “discrimination based on nationality”, but that somehow, in a post-CETA legal landscape, allowing Canadian businesses, or EU-businesses with a Canadian owner, to have privileged access to a legal remedy (namely ISDS) somehow does not allow for “discrimination based on nationality”?
[See reference material on the above question here: Commission, 2015. ‘Commission asks Member States to terminate their intra-EU bilateral investment treaties’. European Commission – Press release, Brussels, 18th June. Available at: http://europa.eu/rapid/press-release_IP-15-5198_en.htm (03-06-16).]
11. Can the government explain its support for CETA and its ISDS, in the context that upon its provisional application or implementation, contrary to the principles of the EU’s single market, Irish businesses and individual Irish investors, will be discriminated against based on their nationality in that they will not be allowed to seek financial compensation at ISDS when and if they feel that EU and Irish laws, regulations, licencing procedures and directives have somehow interfered with their “legitimate expectation” of profit, whereas, Canadian businesses will, by virtue of their different nationality, be allowed to seek financial compensation at ISDS when and if they feel that EU and Irish laws, regulations, licencing procedures and directives have somehow interfered with their “legitimate expectation” of profit?
12. Given that the government’s stated position is that the CETA is a ‘mixed agreement’ and that it thus needs to be ratified by the Dáil prior to its ‘entry into force’; and given that we await the ECJ’s ruling as to whether the EU-Singapore Free Trade Agreement which has an ISDS is ‘mixed’ or not; and given that if the ECJ deems the EUSFTA to be ‘mixed’, then the Council of Ministers could not under EU law provisionally apply it prior to its ratification in all 28 Member State parliaments; in light of the fact that CETA may be a ‘mixed agreement’ (something we cannot know until after the ECJ delivers its ruling on the competences relating to the very similar EUSFTA,) can the government now explain, in the context of Article 67 of the TFEU, and Article 29.5.2 of the Irish Constitution, and Article 30.7.4(d) of CETA, how it intends to protect Irish citizens from the Commission’s proposal to provisionally apply the CETA prior to a definitive legal ruling as to the distribution of competences relating to new proposals to subject the EU to an ISDS under the CETA?