A constitutional challenge to the EU–Canada Comprehensive Economic Trade Agreement (CETA) was brought by Green Party TD Patrick Costello, who claimed that CETA would adversely affect the State’s ability to make environmental regulations.
The Supreme Court, by a majority of four to three, held that the Comprehensive Economic and Trade Agreement between the EU and Canada, commonly known as CETA, cannot be approved by Dáil Éireann under Article 29.5.2 of the Constitution. Therefore, the Courts have concluded that the Irish Constitution precludes the government and the Dáil from ratifying CETA as Irish law now stands. By a majority of six to one, the court also held that certain amendments of the Arbitration Act 2010 would, if effected, permit ratification without breaching the Constitution.
The creation of a tribunal system under CETA, with power to make enforceable decisions on disputes between Canadian investors and EU member states, creates a “parallel jurisdiction” in breach of Article 34, which requires justice shall be administered in courts established by law in the manner provided for by the Constitution, Ms Justice Elizabeth Dunne said.
Mr Justice Gerard Hogan said that in its current form, CETA tribunal awards are “in substance converted almost automatically into judgments enforceable in this State” depriving the High Court of its capacity to supervise such awards and ensure they comply with the Constitution and EU law.
He added: “This fundamental constitutional objection would accordingly be cured if the Oireachtas were to amend the 2010 Act so that the High Court were to be expressly invested with this power in respect of the enforcement of decisions of the CETA Tribunal.”
Responding Tánaiste Leo Varadkar said: “The decision of the Supreme Court is noted. While it is disappointing that ratification is not now immediately possible, the Government remains committed to ratifying the CETA agreement in full.
It will now take some time to reflect on the wider decision and consider its implications. Our initial assessment is that a referendum is not required and that ratification can follow once some changes are made to domestic law.”
CETA has provisionally applied since 21 September 2017. This has allowed Irish companies to take advantage of the beneficial terms of the Agreement since then. In response to the Supreme Court decision, Minister of State for Trade Promotion, Digital and Company Regulation, Dara Calleary, said:
"Business links between Ireland and Canada are deep and extensive. Canada is an important export market, particularly for our indigenous exporters, with more than 400 Enterprise Ireland clients are doing business in the Canadian market. Government will reflect on the decision today and consider the next steps on how best to proceed and to reassure our Canadian partners that Ireland remains very much an advocate for free, fair and open trade."