Green Party TD (Teachta Dála) Patrick Costello is seeking an urgent hearing of his High Court action concerning the constitutionality of parts of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) EU-Canadian which provides for the establishment of “investor courts”.
CETA presents Canadian businesses with preferential access to, and excellent opportunities for growth in the EU. It is a comprehensive, ambitious, and inclusive free trade agreement that upholds and promotes the values that Canada shares with the EU.
However, Patrick Costello, a Green Party TD, and member of Dáil Éireann, the lower house of the Irish Parliament, for Dublin South Central, is concerned the investor court system provided for under CETA involves an unconstitutional transfer of sovereignty and judicial power. The Ceta deal has been a bone of contention within the Green Party for months, with TDs Neasa Hourigan and Patrick Costello steadfast that they would not be voting for the deal.
A vote to ratify the deal was planned for December 2020 but was delayed until the new year. Last month it was referred to an Oireachtas committee further delaying a vote that will likely split the party. Prior to that delayed vote, Ireland Green Party leader, Eamon Ryan, affirmed his support for ratification of the deal. In a letter to party members in early February, Ryan said that there is “an expectation that CETA should be ratified” as part of the Programme for Government (PfG). CETA is not explicitly referenced in the PfG but it says that the government will “support new and existing EU trade deals”.
If the investor court system is brought into force without being sanctioned by a referendum, that would be contrary to Articles 15 and 34 of the Constitution, Costello claims. His proceedings are against the Government of Ireland and the Attorney General.
The matter is urgent because CETA is now under ratification by various EU member states. Counsel asked for an early hearing date and suggested the court might consider allocating a divisional court of three judges to hear it before the court’s summer term ends on July 31st. Michael Cush, one of the senior counsels for the defendants, said CETA is a very important agreement and it is very much in the State’s interest, and consistent with its EU obligations, to ratify it. The Government had intended CETA to be ratified via a Dáil motion before Christmas, he said. If Costello’s arguments are correct, a referendum would be required which would further delay it.
The Green Party has campaigned against Ceta for years. Social justice-focused Green Party sub-group the Just Transition Greens have also been vocally opposed to CETA. One of the concerns raised by various parties about the CETA deal is the establishment of a new Investment Court System that could see private companies sue member states over regulatory decisions that negatively impact their profits.
Most of the provisions in the Comprehensive Economic and Trade Agreement (CETA), which will remove the vast majority of trade barriers between Canada and the European Union, are already in operation.
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