Koen Lenaerts, President of the Court of Justice of the European Union, discussed the key issues and elements of the Court's Opinion 1/17 on CETA, the trade agreement between the European Union and Canada, at a seminar organised by his services on Friday 6 September.
At the heart of this opinion, which concerned the Investment Court system (ICS), provided for without CETA: the clarification by the Court as to the autonomy of the European legal order (see EUROPE 12245/3).
The Court stated in the opinion that this legal order had its own "constitutional framework", including the norms and values resulting from the democratic legislative process.
The CJEU thus ensured that CETA courts would not interfere with the CJEU's monopoly on interpreting EU law.
More importantly, this opinion, which should be read in conjunction with Opinion 2/15 (see EUROPE 11789/10), sets the protection of European standards in stone, confirming that CETA courts could, under no circumstances, undermine EU standards and values or undermine the level of protection set in the public interest.
Conditional compatibility
If tomorrow a trade and investment agreement is concluded with a third country that does not provide for guarantees similar to those included in CETA regarding the protection of EU standards, this agreement will be deemed incompatible with European law, the President of the CJEU also warned.
Any ICS is only compatible with EU legislation as long as it maintains the high level of European standards and the constitutional order established by the Union.
The opinion confirms the recent evolution of the very paradigm of trade agreements, concluded Didier Reynders, Belgian Minister for Foreign Affairs.
CETA belongs to a new generation of European trade agreements which aim, in addition to trade liberalisation, to export European standards abroad.
Impact of the opinion on CETA
As for the impact of this opinion on the application of CETA - after ratification by all Member States - "it is quite usual, in the practice of international treaties [to consider] that by depositing the instruments of ratification, the EU and Canada agree on a cooperation document that is in line with our opinion", said Mr. Lenaerts. "This instrument of ratification becomes part of what binds both parties", he concluded. (Original version in French by Hermine Donceel)