Hearing date set for Green TD’s challenge over CETA trade deal

Green Party TD Patrick Costello has secured a July hearing date for his High Court action over the constitutionality of parts of the EU-Canadian trade deal known as CETA providing for the establishment of "investor courts".

High Court president Ms Justice Mary Irvine said on Wednesday the case will be heard before Ms Justice Nuala Butler on July 13th and had been allotted four days.

Ms Justice Butler believes a case of this importance was probably best argued in a physical environment if the Covid-19 situation allowed, she added.

Siobhán Phelan SC, with John Rogers SC, instructed by FP Logue Solicitors, for Mr Costello, said their preference was for a physical hearing. Michael Cush SC, for the State respondents, said he shared that preference.

The judge said, while the court will have to look at the updated Covid-19 situation in July, she would be confident about a physical hearing or perhaps a hybrid hearing with some participants in court and others participating remotely.

Mr Costello, a Green Party TD for Dublin South Central, is concerned the investor court system provided for under the CETA (Comprehensive Economic Trade Agreement) involves an unconstitutional transfer of sovereignty and judicial power.

If the investor court system is brought into force without being sanctioned by a referendum, that would be contrary to Articles 15 and 34 of the Constitution, he claims.

His proceedings are against the Government of Ireland, Ireland and the Attorney General.

Significant issues

The case raises very significant constitutional issues concerning the power to the Executive to ratify CETA as well as issues of EU law raised by the defence.

CETA is under ratification now by various EU member states and the Government had intended it to be ratified via Dáil motion before Christmas.

CETA has two distinct elements, the first a trade treaty designed to reduce tariffs and increase trade between the EU and Canada. The trade element has been provisionally ratified by the EU and Canada and has been applied since September 2017.

The second element, the focus of Mr Costello’s case, provides for an investor protection system and an 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 claims the protections to be applied to Canadian investors usurp and supplant the law making function of the legislature and the judicial competence of the Irish courts.

His concerns include there is no limit on the value of compensation which may be awarded under the investor tribunal system and neither the tribunal, nor an appellate tribunal, will be composed of judges appointed under the Irish 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 the CETA has given due weight to the rights of Ireland, he says.

He wants various declarations including that the relevant part of CETA is repugnant to the Constitution and that the defendants cannot ratify it unless the people have approved it in a referendum. The defendants dispute his claims and plead, inter alia, ratification of Chapter 8 is within the scope of the Executive power of the State.