Opinion 1/17

Economics, trade and finance — Free trade agreements — International investment — “New generation” free trade agreements — Comprehensive Economic and Trade Agreement, 2016 (“CETA”) — Whether CETA’s investor–State dispute settlement provisions compatible with EU primary law — Principle of autonomy of EU legal order — Principle of equal treatment — Requirement of effectiveness of EU law — Right of access to an independent and impartial tribunal — Article 47 of Charter of Fundamental Rights of the European Union, 2000 Treaties — Interpretation — Application — Free trade agreements — International investment — “New generation” free trade agreements — CETA — European Union and non-member States Parties to international agreement — Agreements integral part of EU law and subject of references for preliminary ruling to Court of Justice of the EU — Compatibility of agreements with EU Treaties, constitutional principles and EU Charter — Court of Justice of the EU having jurisdiction to interpret and apply agreements — Whether jurisdiction of Court of Justice of the EU taking precedence over jurisdiction of court of non-member State — Reciprocal nature of international agreements — Maintenance of powers of European Union in international relations — Whether jurisdiction of Court of Justice of the EU taking precedence over jurisdiction of international courts and tribunals established by agreements — Whether EU law precluding agreement from providing for creation of tribunals — Whether EU law precluding agreement from conferring jurisdiction on those tribunals to interpret and apply provisions of agreement having regard to rules and principles of international law applicable between Parties — Whether conditions applicable Jurisdiction — Court of Justice of EU — EU and non-member States Parties to international agreement — CETA — Court of non-member State — Agreement providing for creation of tribunals — Agreement conferring jurisdiction on those tribunals to interpret and apply provisions of agreement having regard to rules and principles of international law applicable between Parties — Whether precluded by EU law — Whether jurisdiction of Court of Justice of EU having precedence — Whether CETA conferring jurisdiction on CETA Tribunal to interpret or apply EU law — Whether CETA adversely affecting autonomy of EU legal order 545 Damages — CETA Tribunal — CETA Appellate Tribunal — Whether CETA tribunals having jurisdiction to award damages to Canadian investors for loss suffered through EU acts of general application setting the level of protection of a public interest adversely affecting autonomy of EU legal order — Whether damages granted for a fine for breach of EU competition law found to constitute an infringement of CETA undermining the principle of effectiveness of EU law International tribunals — CETA Tribunal — CETA Appellate Tribunal — Whether Article 47 of Charter of Fundamental Rights of the European Union, 2000 applicable to dispute resolution fora created by EU’s international agreements — Whether CETA tribunals satisfying requirements of accessibility, independence and impartiality — Whether small and medium-sized enterprises’ right of access to CETA tribunals impaired by the “loser pays” principle — Whether powers of CETA Joint Committee to appoint and remove Members of CETA tribunals, to determine their remuneration and to issue binding interpretations of CETA respecting requirement of independence — Whether CETA sufficiently guaranteeing impartiality of Members of CETA tribunals vis-à-vis disputing parties and government of their State of origin Jurisdiction — CETA Tribunal — CETA Appellate Tribunal — Whether CETA tribunals having jurisdiction to assess compatibility of EU acts of general application setting the level of protection of a public interest adversely affecting autonomy of EU legal order Relationship of international law and municipal law — EU law as domestic law — Application or interpretation of domestic law as a matter of fact — Whether power of CETA tribunals to take EU law into account as a matter of fact compatible with principle of autonomy of EU legal order Treaties — Free trade agreements — International investment — “New generation” free trade agreements — CETA — Equal treatment of Canadian and EU investors — Whether granting access to CETA’s investor–State dispute settlement provisions for investments made in EU only to Canadian investors constituting discrimination — Whether Canadian and EU investors investing in EU in comparable situations — The law of the European Union

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