No need for referendum on EU-US trade deal, says Government

Companies will be able to sue national governments under planned TTIP agreement

Greenpeace activists display a banner against TTIP free trade agreement while suspended on one of the Kio towers in Madrid, Spain. Photograph: Andrea Comas/Reuters

Greenpeace activists display a banner against TTIP free trade agreement while suspended on one of the Kio towers in Madrid, Spain. Photograph: Andrea Comas/Reuters


The Government has rejected claims that a proposed EU-US trade deal would necessitate a referendum in Ireland.

The Department of Jobs, Enterprise and Innovation told The Irish Times that preliminary legal advice had indicated that the European Commission’s proposal that an investment court system should be included in the transatlantic trade deal “would not give rise to Constitutional implications”.

It follows a legal opinion by Matthias Kelly QC that the EU’s special investment court could infringe on a number of articles in the Irish Constitution.

The EU-US trade deal known as TTIP (Transatlantic Trade and Investment Partnership) was launched under the Irish presidency of the European Union in June 2013 and aims to create the world’s biggest trade bloc by removing remaining trade barriers between the EU and the US.

But the proposed trade deal has elicited strong public opposition, particularly in countries such as Germany and Austria, amid fears that European standards on food, genetically-modified organisms and healthcare could be sacrificed.

Earlier this year the European Commission proposed introducing a special investment court to arbitrate between governments and corporates, in response to mounting criticism that the agreement’s ISDS clause (Investor State Dispute Settlement) could allow companies to sue national governments over contracts.

Tribunal system

Noting that the court will be effectively a tribunal system, a spokesman for the Department of Jobs, Enterprise and Innovation said that the proposal would not give rise to Constitutional implications for Ireland.

“There is no question of such a court/tribunal overruling Irish courts or overturning any legislation passed by the Oireachtas.”

But according to a legal opinion by Matthias Kelly, a former head of the Bar Council of Britain and Wales, the introduction of this court could impinge on a number of articles in the Constitution, including: Article 15.2.1 which vests sole power to make law in the Oireachtas; Article 34.1 which vests the power to dispense justice in the Irish domestic courts; and Article 34.3.2, which makes the High Court and Appellate Courts above it the sole court in which a law may be questioned.

Sinn Féin MEP Matt Carthy reiterated his confidence in the legal opinion from Mr Kelly.

“I firmly believe that should the European Commission continue to pursue a permanent Investment Court mechanism within either the CETA [Canadian free trade agreement] or TTIP trade agreements that the Irish government would be obliged to amend the Irish constitution before ratifying.”

Mr Carthy, who is due to meet the European Commission on the matter this week in Brussels, accused the Irish government of consistently “acting as PR agents for the commission rather than defenders of Ireland’s interests”.

“The refusal of the government to act accordingly following the legal advice which has been forwarded to them is both worrying and disappointing,” he said. ” For my part I will use all political and legal avenues available to prevent the government from signing us up to a bad trade deal.”

Almost three years since the EU agreed to launch negotiations on a trade deal with the US, negotiations are ongoing, with the latest round of talks taking place in New York in April.

Outgoing US president Barack Obama used a visit to Germany last month to push for new momentum behind the deal. Negotiators on both sides of the Atlantic are keen to secure agreement on the highly technical trade pact before the end of the current mandate of President Obama, fearful that political support for the agreement could wane under the new US administration given the anti-free trade rhetoric surfacing during the US presidential primary campaigns. A report released by Ecorys Consultancy last week claims that Ireland would be one of the main beneficiaries of TTIP, with the agreement expected to boost GDP by 1.4 per cent.