The High Court has reserved judgment on a significant challenge by Green Party TD Patrick Costello over the constitutionality of aspects of the EU-Canada trade deal Ceta providing for "investor courts" to decide complaints by Canadians who invest in EU member states.
In closing arguments on Friday for Mr Costello, Siobhán Phelan SC said what is occurring is a “transfer of sovereignty” by the executive which is proposing a transfer of judicial and legislative powers “that do not even belong to it”.
Ceta (Comprehensive Economic Trade Agreement) has “momentous potential consequences” because it signs the State up to an international court system with power to determine justiciable controversies, she said. That is “simply impermissible within our constitutional order”.
Ceta provides for “the removal of the Irish courts from the equation” at the stage where the legal rights of Canadian investors are being determined, she said. Those rights will be determined according to Ceta rules and the decision of the Ceta tribunal on those rights can be enforced in Ireland as if it were a decision of the Irish High Court, she submitted.
If the court finds in favour of Mr Costello, that would not be a finding Ceta is “bad” but rather of such moment and consequence it should be put to the people in a referendum, she said.
Having heard final arguments on Friday in the four-day hearing, Ms Justice Nuala Butler said she hoped to give judgment as soon as she could. She was told Ireland is among several EU states yet to ratify Ceta.
Usurp and supplant
In his proceedings against the Government of Ireland, Ireland and the Attorney General, the Dublin South-Central TD claims the protections for Canadian investors in chapter 8 of Ceta usurp and supplant the law making function of the legislature and the judicial competence of the Irish courts as set out in articles 15 and 34 of the Constitution.
Chapter 8 provides for an investor protection and investor tribunal system. If ratified, a code of rules will come into force under which Ireland will be bound by restrictions relating to establishment of investments by Canadian investors here.
Mr Costello’s concerns include there is no limit on the value of compensation which may be awarded under the investor tribunal system and neither it, nor an appellate tribunal, will be composed of judges appointed under the Constitution. There is no mechanism under Ceta reserved for the Irish courts via appeal or judicial review to determine whether the investor tribunal/appellate tribunal established under Ceta has given due weight to the rights of Ireland, he says.
The respondents deny the disputed provisions involve a transfer of sovereignty and contend, inter alia, Ceta creates rights and obligations at the level of international law but is not part of the domestic law of the state. They also rely on EU law.
Their core claim is that Ceta involves an exercise of the executive power of the State to enter into an international agreement which, they maintain, is fully compatible with the Constitution.
Earlier on Friday, in final submissions for the respondents, Suzanne Kingston SC rejected Mr Costello’s contention that, for reasons including Ceta is a mixed agreement and chapter 8 concerns member state competence, article 29.4.6 of the Constitution is not relevant.
Article 29.4.6 provides, inter alia, nothing in the Irish Constitution invalidates measures adopted by the State . . . necessitated by obligations of membership of the EU . . . from having the force of law in the state, counsel outlined. Article 29.4.6 is “absolutely engaged” in this case and “absolutely relevant” to Ireland’s ratification of Ceta, she said.
Ceta does not mean a usurpation of Irish sovereignty into the future and it was incorrect to say its effect will transform a “shared competence” between EU and Ireland into an “exclusive” competence of the EU and remove Ireland’s veto as a result of the presence of qualified majority voting, she also argued.