by Dániel Fehér
Today’s decision of Germany’s Constitutional Court on CETA is an important success in the fight against the EU’s free trade machinery. It is not a free ticket for CETA’s approval, as the German government now wants us to believe. And it is also a slap in the face of the European Commission that has been calling for the provisional application of all chapters of CETA.
At the initiative of the German NGOs Mehr Demokratie, Campact and foodwatch, over 125.000 citizens asked the Country’s Constitutional Court to stop the German government from signing CETA. Their complaint aims to prevent irreparable damage to the democratic rights of German parliaments and the constitutional rights of German citizens via provisional application. It is important to note that this is the only aspect that the judges scrutinized during this first fast-track procedure. Whether CETA – and especially legal privileges for investors through ICS – is in line with the German constitution or not will only be answered in the main procedure which is expected to take at least 1-2 years.
The Court decided (EN soon here) as it usually does in such cases: It refrained from limiting the German government’s and the European Union’s political prerogative to shape trade policy. So it gave green light to Germany’s approval of CETA in the EU Council – however, it did so based on important conditions. These go clearly beyond the concessions that the Commission and Member State governments were ready to make so far.
1. Scope of provisional application
No part of CETA may be provisionally applied where the sole competency of the EU level is not crystal clear. This would mean that the Council has to take out all chapters from provisional application where member states voice subsidiarity concerns. The Court highlighted five areas explicitly where the German government is not allowed to accept provisional application:
- Investment protection, including ICS (Chapters 8 and 13)
- Portfolio investments (Chapters 8 and 13)
- International maritime transport (Chapter 14)
- Mutual recognition of vocational qualifications (Chapter 11)
- Protection of workers (Chapter 23)
This is not a final list though. The Court’s criteria might apply also to other areas, such as cultural production, as the German Cultural Council points out in its subsequent statement.
So far EU governments only had an agreement on excluding investment protection. As of today, we can expect that democratic control rights of national parliaments will not be compromised by the instrument of provisional application. This is a huge progress compared to the European Commission’s original intentions.
2. Termination of provisional application
Even though strong public resistance forced the European Commission into submitting CETA to the Council as a mixed agreement – i.e. as one that needs to be ratified by all Member States – until today we had to fear that even in the highly likely scenario that some countries might not ratify it, the EU-only parts will be “provisionally applied” forever. The Court also made it clear that provisional application cannot be a one-way street. It requested the German government to secure an agreement that allows any Member Country to withdraw from provisional application of CETA.
Translated to the European level, this would mean that the scope and triggering of provisional application must be agreed unanimously – and even later, any Member State could demand a termination. This is another blow for the technocrats who hoped to create a fait accompli through CETA bypassing the democratic rights of national parliaments.
3. The CETA joint committee
The Court also wants to be assured that the joint CETA committee – consisting only of representatives nominated by the Canadian government and the EU Commission – cannot make decisions that interfere with the sovereign rights of Member States. Therefore it proposes an inter-institutional agreement between Council and Commission that would basically ensure veto power for all governments in the committee’s work.
Once again, this would mean that important decisions in international trade matters cannot be done by unelected technocrats alone – as lobbyists and officials of the Commission’s Trade Directorate General might have dreamed of – but must have the explicit approval of democratically elected parliaments and governments.
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All in all, the German Constitutional Court – unlike the Commission or the German government – has taken the criticism of CETA’s democratic deficit very seriously and laid down important criteria to ensure the rights of parliaments in the approval and implementation process. Thinking of the obscurity and technocratic vagueness at CETA’s starting point, this decision is not a triumph for Sigmar Gabriel and Cecilia Malmström, but for European citizens and the Europe-wide movement fighting the assault on our democracy through trade deals like CETA and TTIP.