Photo: John Thys Agence France-Presse
Yves Bot, the advocate general of the CJEU, has contradicted its opponents in concluding that the famous mechanism of settlement of disputes between investors and States is compatible with european law.
Europe became closer still a little more than the ratification of its free trade agreement with Canada by its member countries.
A controversial provision of the comprehensive economic and trade Agreement (CETA) between Canada and the european Union took on Tuesday a first green light of the legal authority of the supreme EU. Induced to express a first opinion on the mechanism that would allow private investors to sue States before a special tribunal if they believe they are victims of discrimination, the advocate general of the Court of justice of the european Union (CJEU), Yves Bot, has contradicted its opponents in concluding that the famous mechanism of settlement of disputes between investors and States is compatible with european law, that it does not encroach on the powers of the court of justice and that it offers sufficient guarantees as regards fairness, impartiality and independence.
This notice is only a first step towards a decision by the CJEU. Its judges themselves have yet to rule on the case. If one relies on his habits, the Court should make its decision ” within four to six months “, said by e-mail to the Duty of the EU delegation in Ottawa.
But this could easily go up in the fall, has explained in telephone conversation to the Duty of the professor of law and director of the Jean Monnet Chair in european integration, Université Laval, Olivier Delas. “This favourable opinion of the advocate general is important because it is that of an independent expert, and it is generally followed by the Court. Not always, but very often. “
The mechanism-based investor-state is perceived by its opponents as an infringement by the authorities of the money to the sovereignty of elected governments. Before the outcry raised in Europe, the negotiators for Canada and the EU have altered the usual rules by better defining its field of action, putting more distance between its judges and the companies, and the styling of a court of appeal.
A negative opinion of the CJEU would block the adoption of CETA in Europe and would require the renegotiation or abandonment of its problematic provisions. This would be a hard setback for a free-trade agreement concluded in 2016 at the end of more than seven years of negotiations. Entered provisionally into force almost in its entirety in September 2017, after ratification by Canada and the european Parliament, it must still be ratified by 38 national parliaments, second chambers and regional parliaments in the 28 countries members of the EU to get unanimous support required.
10 on 28
So far, a dozen countries of the EU have ratified CETA. It is the opposition of the parliament of the Wallonia to the mechanism-based investor-state which has brought Belgium to submit the provision to the european Court. Italy and Hungary are also part of the opponents, but for other reasons.
Ottawa and Brussels say this fall have good hope that their agreement will eventually obtain the agreement of all with the time. “There’s no need to get upset. This kind of ratification process is often very long “, confirms Olivier Delas, who thinks that the agreement has good chances to be finally adopted.
CETA is qualified by the experts of the treaty of free exchange of new generation, in particular because it is not limited to the reduction of tariffs on the products, but also carries on the trade of services, the mobility of the workforce, or regulatory cooperation.