EU-Canada Trade Pact Faces Constitution Test at German Courtby
Activist groups seek injuction against German signature
Judges hear five cases and plan to issue ruling on Thursday
Opponents of a controversial EU-Canada trade pact scheduled to be concluded later this month asked Germany’s top court to put the brakes on the deal they claim undermines democratic control and national standards.
Activist groups, national opposition lawmakers and a member of the European parliament are trying to convince the Federal Constitutional Court to make the German government veto the plan at a European Union meeting next week. The judges in Karlsruhe opened hearings on Wednesday and have said they aim to issue an interim ruling on the five lawsuits Thursday morning.
The EU and Canada have been negotiating the Comprehensive Economic and Trade Agreement, or CETA, since 2009. Like its counterpart TTIP, the Transatlantic Trade and Investment Partnership, being thrashed out between the U.S. and the EU, CETA has come under public criticism on both sides of the Atlantic. Opponents argue the accords will cost thousands of jobs, promote industrial agriculture and lower standards.
"Free trade isn’t on trial here,” said law professor Bernhard Kempen, who represents 125,000 citizen in one of the cases. “The plaintiffs aren’t against free trade. But CETA is a new type of free-trade agreement because it comes at a price: democracy."
The German suits say CETA would undermine the principle of democracy because it bypasses parliament by entrusting some rulemaking to a committee set up under the treaty. They complain the EU transgresses its powers because it plans to allow provisional implementation of the rules even before national parliaments have ratified them.
The plaintiffs also argue that the pact would subject Germany to a special arbitration court in cases that the country’s constitution has reserved to national courts. They also claim the agreement would topple the European principle that a product cannot be sold unless proven safe. Instead, the pact gives way to the North American principle that you can’t ban a product unless it’s been proven dangerous.
Klaus Ernst, a member of parliament of the Left Party involved in the court fight, said the opposition isn’t just German. Two thousand municipalities in France, the Netherlands, the U.K., Bulgaria and other nations are opposing the agreement on the grounds that it curtails local standards as well, like "buy-local" rules. CETA brands environmental, labor and consumer rules as trade barriers, he said.
German Economy Minister Sigmar Gabriel defended the pact, saying Canada agreed to numerous principles dear to Europeans, such as core labor standards, including the ban on child labor. Other trade agreements, like those between the U.S. and Asian states, would never uphold similar standards, and that’s why it’s important to pass CETA as a role model for future agreements, he said.
"Trade will get rules, the question is which ones?" Gabriel told the court. "If, after seven years of negotiations, we can’t even do it with Canada, which is culturally the closest to us among our potential partners, then with whom can we do it?"
The minister said that in the past three years no other issues were debated more often in the German parliament than TTIP and CETA, so opponents couldn’t argue that lawmakers didn’t have a say. He also defended the arbitration court, saying such panels have been the standard in more than 100 trade agreements Germany concluded with other nations.
"No one cared about these kind of arbitration panels at the time when we imposed these rules on weaker nations," said the minister.
If the EU failed to get CETA through, it would be a "catastrophe," Gabriel told the judges. Such an outcome would affect the bloc’s credibility and hamper its ability to conclude similar deals in the future, he said.
The court’s interim ruling planned for Thursday will only decide whether the CETA process needs to be put on hold while the cases are pending. That decision would balance the risks of temporarily stopping the pact with the dangers of letting it go ahead pending a final ruling.
Andreas Vosskuhle, the court’s president, said there are very high barriers for stopping a political act during litigation, especially if international matters are involved. He said it will be crucial that the provisional implementation could also be repealed under CETA rules.
The plaintiffs argue that the EU might be able to bypass parliaments altogether depending on an opinion expected by the bloc’s top court on a similar pact with Singapore. If that tribunal determined that the EU can close such deals without the approval by member states’ parliaments, Germany would be unable to repeal the provisional implementation once set in action.
Vosskuhle asked Gabriel whether he can make a binding declaration for the government to the effect that Germany would be able to have the provisional implementation repealed if needed. When the minster said he could, Vosskuhle said the judges may make this part of their ruling.
The suits echo arguments in other German cases seeking to rein in European integration -- including litigation against the European Central Bank’s OMT bond-buying program, which was brought by some of the same plaintiffs. While these cases have all been dismissed, the judges generally attached some strings to ensure the German parliament preserved its influence.
Among the plaintiffs also involved in the OMT fight is Mehr Demokratie e.V., a group that seeks to introduce more direct democracy in Germany. This time it joined forces with political activist groups Foodwatch and Compact to file a suit on behalf of about 125,000 plaintiffs. Another suit was initiated by 70-year-old flute teacher Marianne Grimmenstein-Balas who, with the help of the Internet, got 68,000 people to join her case.
EU ministers are scheduled to clear CETA in a vote on Oct. 18 and the pact is due to be signed at a EU-Canada summit on Oct. 27. The pact would cut trade barriers between the EU’s market of more than 500 million people and Canada, the world’s 10th-biggest economy last year.
The cases are: BVerfG, 2 BvR 1368/16, 2 BvR 1444/16, 2 BvR 1482/16, 2 BvR 1823/16 and 2 BvE 3/16.