BVerfG on free trade agreement Ceta: blank check for the government?

In 2016, the left-wing parliamentary group brought a constitutional complaint against the Bundestag’s approval of Ceta. Negotiations will take place in Karlsruhe on Tuesday.

Long struggle for the free trade agreement: Anti-Ceta demonstration 2016 in Berlin Photo: Zuma Press / imago

BERLIN taz | On Tuesday, October 13th, the Federal Constitutional Court will deal with the Ceta free trade agreement between the EU and Canada. The left parliamentary group has sued. The reason: By agreeing to implement the agreement for the time being, the Bundestag did not live up to its responsibility and thus violated the Basic Law, the left believe.

The Ceta Agreement aims to intensify trade between the EU and Canada. Over 99 percent of tariffs will be removed. In Canada, EU companies can also participate in public tenders at regional and local level.

The EU Council of Ministers approved Ceta in October 2016. The Federal Constitutional Court had given the federal government the consent there in an urgent decision with certain conditions. The majority of the Ceta contract has been applied provisionally since 2017 due to a separate resolution.

Two large-scale proceedings on Ceta are pending at the Federal Constitutional Court. The substantive assessment of whether the EU acted beyond its competences (“ultra vires”) when the treaty was concluded is expected to be negotiated next spring. The plaintiff here is an alliance of “More Democracy”, foodwatch and campact, which is supported by 125,000 citizens. The left-wing parliamentary group in the Bundestag is also present with a separate lawsuit.

A chance to undermine environmental standards?

On this Tuesday, however, the parliamentary questions will first be discussed. The parliamentary group on the left is attacking the Bundestag’s position on the provisional application of Ceta. In September 2016, the Bundestag gave the green light, provided that investment protection and issues with national competence are excluded.

None of this went far enough for the left. Instead of a statement with limited binding force, the Bundestag should have made its position binding by law, they think. The content of the statement is also too vague and is essentially issuing a “blank check” to the government, according to the lawsuit formulated by Berlin law professor Andreas Fischer-Lescano. The Bundestag neither states exactly which matters should be excluded from the provisional application, nor does it ensure that the EU does not act beyond its competences.

In October 2015 around 250,000 people demonstrated against Ceta in Berlin. Above all, the protection of investors from the other economic area was criticized. Investors are guaranteed “fair and cheap” treatment in the contract, and they are also protected against “indirect expropriations”.

Critics fear that corporations can block an improvement in standards in environmental and consumer protection as well as in labor law in this way. Due to the protests, however, an innovative solution was agreed to protect investors in Ceta. 15 permanently appointed judges are to sit in the Ceta court, while arbitral tribunals have so far been made up of lawyers and professors who have been paid on a case-by-case basis.

The Groko is threatened with embarrassment

Originally, the protest was directed against the planned TTIP agreement with the USA, which did not come about because US President Donald Trump seems to have no interest in free trade agreements. For the EU, Ceta now serves as an exemplary agreement on which other free trade agreements, for example with China, should be based.

And the agreement actually has significant consequences: In 2018, goods exports from the EU to Canada rose by 15 percent compared to the average of the three previous years. Above all, exports of cheese (plus 33 percent) and pharmaceutical products (29 percent) grew.

The provisional application of the agreement does not apply to the rules on investment protection, which have yet to be ratified by the national parliaments. So far, the representatives of 14 EU states have ratified the treaty, 13 EU states are still missing, including Germany. Most recently, the Cypriot parliament voted against the agreement. In the Federal Republic of Germany it is controversial whether, in addition to the Bundestag, the Bundesrat must also agree, where the Greens, who have criticized Ceta so far, could enforce a veto. Federal politics is currently waiting for the outcome of the processes in Karlsruhe and only then wants to decide on a Ceta ratification.

The verdict on the current action by the left-wing faction will only be announced in a few months. A success of the left would be an embarrassment for the grand coalition and would probably set standards for the future EU responsibility of the Bundestag. Since it is a matter of internal processes, a success of the constitutional lawsuit would probably have no effect on Germany’s provisional ties to Ceta.