1. Compatibility of ICS in CETA with EU law Presentation by: Laurens Ankersmit GUE CETA conference 31/5/2016

2. Introduction CETA and the EU legal and judicial system Main legal obstacles 1.The autonomy of EU law 2.Jurisdiction of EU courts to hear damages claims 3.Discrimination and the internal market A request for an Opinion under article 218 (11) TFEU

3. Compatibility of ICS EU primary law EU international agreements EU secondary law Member State law EU hierarchy of norms CETA EU Treaties, including the TEU, TFEU, and the EU Charter of Fundamental Rights Includes powers of EU judiciary, internal market, and non- discrimination provisions

4. The autonomy of EU law The EU judicial system and the autonomy of EU law Preliminary references and the dialogue between the ECJ and national courts: art. 267 TFEU and 19 TEU Commission legal service amicus curiae in Achmea v. Slovakia: “ an investor-State arbitral mechanism […]conflict[s] with EU law on the exclusive competence of the EU court for claims which involve EU law, even for claims where EU law would only partially be affected. ” Commission legal service amicus curiae in EURAM v. Slovakia: “ The arbitral tribunal is not a court or tribunal of an EU Member State but a parallel dispute settlement mechanism entirely outside the institutional and judicial framework of the European Union. Such mechanism deprives courts of the Member States of their powers in relation to the interpretation and application of EU rules imposing obligations on EU Member States. ”

5. The autonomy of EU law (II) 2.What does the Court think? Opinion 2/13 on the EU’s accession to the ECHR 'If the Court of Justice were not allowed to provide the definitive interpretation of secondary law, and if the ECtHR, in considering whether that law is consistent with the ECHR, had itself to provide a particular interpretation from among the plausible options, there would most certainly be a breach of the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law. [...] Accordingly, limiting the scope of the prior involvement procedure, in the case of secondary law, solely to questions of validity adversely affects the competences of the EU and the powers of the Court of Justice in that it does not allow the Court to provide a definitive interpretation of secondary law in the light of the rights guaranteed by the ECHR.'

6. Jurisdiction of EU courts to hear damages claims Art. 340 and 268 TFEU: If you want to sue the European Union for damages you have to go to the European Court of Justice 1.You can sue the EU on the basis of article 340 TFEU 2.But you can sue the EU only and exclusively in front of the EU courts “'With regard to the [EU]'s non-contractual liability, such disputes fall within the jurisdiction of the Court of Justice. Article [19 TEU] provides that the Court of Justice has jurisdiction to hear and determine actions seeking compensation for damage brought under the second paragraph of Article [340 TFEU], which covers such non-contractual liability. That jurisdiction of the [EU] Courts is exclusive.” (Case C-377/09 Hanssens_Ensch v. European Community)

7. Jurisdiction of EU courts to hear damages claims (II) 1.Undermining the EU court’s powers under article 340 TFEU: 1.Article 340 TFEU is a secondary remedy under EU law. 2.The Court does not find the EU liable easily because it is concerned about a ‘regulatory chill’ the 'exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the Community requires legislative measures to be adopted which may adversely affect individual interests.' (Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur)

8. ICS affects the internal market rules 1.EU competition and internal market rules 2.Article 54 TFEU: discrimination of EU companies and citizens

9. Requesting the Opinion of the Court of Justice Article 218 (11) TFEU: ‘ A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.’ 1.The Commission 2.The Parliament 3.The Council 4.Member States 5.Opinion 2/15 (on the EU-Singapore FTA)