DE: Provisional application of CETA upheld by BVerfG

Apr 29, 2022 Benn-Ibler Rechtsanwälte

The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) had to decide on an action filed by the Left Party (“Die Linke”) parliamentary group in the Bundestag and on other numerous constitutional complaints against the provisional application of the Canada-European Free Trade Agreement called Comprehensive Economic and Trade Agreement (CETA).

After protracted negotiations, the EU Council decided in 2016, on the proposal of the EU Commission, to approve the signing of the Canada-Europe Comprehensive Economic and Trade Agreement CETA and to declare it provisionally applicable in the member states. In contrast to Austria, twelve Member States of the European Union, including the Federal Republic of Germany, have not yet completed the ratification procedure, which leads to the full application of mixed agreements.

A mixed agreement exists if issues are concerned which are not explicitly regulated in the Treaty on the Functioning of the EU as an exclusive competence of the EU or which do not implicitly constitute an exclusive EU external competence. Such an agreement can only finally enter into force if all contracting parties and thus also all EU member states ratify the agreement in accordance with their respective domestic regulations. Until then, only those parts of the agreement that fall within the EU competence and precisely not within the competence of the member states are applied.

The complainants now claimed that the approval and signing of the provisional applicability of the agreement was unconstitutional and thus a violation of their constitutional identity and an ultra vires act.

They complain that the European Union's overstepping of competences is obvious and leads to a structurally significant shift in the structure of competences. The investment protection and the establishment of arbitration tribunals provided for in CETA violate the rule of law and the principle of democracy. There should be no special law and no special courts for certain groups. However, CETA creates such special law, which differs significantly from German law. The committee structure provided for in the agreement also clearly violates the Bundestag's constitutional rights. The Member States were not represented in the committees, although the regulatory powers also concerned matters that were within the competence of the Member States.

The BVerfG commented on this as follows: The Council decision on provisional applicability extends only to matters that fall within EU competence. An ultra vires act can thus be ruled out. There are doubts as to whether the agreement is compatible with the Constitutional Law in all points. However, due to the current only provisional applicability, particularly sensitive areas are not in force.

BVerfG, 2 BvR 1368 (15.03.2022)