The AACC agreement, which is about to be voted by the European Parliament on 15 February, infringes the French Constitution, according to an analysis by the NGO foodwatch. The recent additions of texts in the annex, notably following requests from Wallonia, do not change this. This is confirmed by a new analysis by Dominique Rousseau, professor of constitutional law. (1), Évelyne Lagrange (2) and Laurence Dubin, professors of public international law (3) solicited by foodwatch with the collaboration of the Veblen Institute and the Fondation Nicolas Hulot (FNH). Beyond the vote of the AACC in the European Parliament, this incompatibility could make ratification by France impossible as it stands.
L’Since 2013, the European Union has been negotiating a free trade treaty with the United States: the TTIP or TAFTA (Transatlantic Free Trade Agreement). Less well known, a final text for another transatlantic agreement has already been concluded with Canada: the CETA (Comprehensive Economic and Trade Agreement). It therefore precedes the TAFTA, and is likely to be adopted very soon...
But at what cost? Opponents continue to make themselves heard, and denounce an "opaque" agreement, negotiated and signed to the detriment of citizens. These new kinds of treaties are much more than just technical negotiations for trade: they will have a lasting impact on our daily lives, as they threaten to reduce our freedom to decide our social, environmental and economic rules.
If we allow this to happen, these rules will be dictated more than ever by the multinational lobbies.
If the European Parliament adopts the AACC on 15 February in Strasbourg, this EU-Canada free trade agreement will enter the phase of national ratification by member states. Faced with the demands of Wallonia, on the one hand, and of the German Constitutional Court, seized by foodwatch and more than 120,000 citizens, on the other, almost 40 interpretative documents were drafted at the last minute and annexed to the AACC in order to obtain its signature on 30 October.
However, these annexes do not solve the constitutional problems posed by the AACC. foodwatch, the Veblen Institute and the FNH focus on three fundamental infringements of the Constitution that emerge of the analysis by Dominique Rousseau, Evelyne Lagrange and Laurence Dubin:
(1) Failure to respect the principle of equality The investor-State dispute settlement (ISR) mechanism allows foreign investors, and only foreign investors, to bring a claim before a specially constituted international tribunal for the protection of investments.
This tribunal will be able to judge the compatibility of the measures taken by a Member State of the European Union or the European Union with the provisions of the AACC and the multiple rights it recognises for foreign investors to obtain compensation for prejudicial measures.
This mechanism therefore introduces an inequality before the law between domestic and foreign investors. However, despite the elements added in the common interpretative instrument ("CETA will not result in foreign investors being treated more favourably than domestic investors"), an inequality of procedural treatment remains. In the event of a challenge to a public policy decision taken by France, foreign investors will benefit from a special legal remedy to protect their interests, unlike domestic investors. As foreign investors are still not required to exhaust domestic remedies, they will therefore be able to bypass them and decide to appeal directly to the parallel international tribunal set up by the CETA.
Infringements of the "essential conditions for the exercise of national sovereignty": the AACC strips national courts of their ordinary jurisdiction in favour of the international tribunal, which can only be seized by foreign investors. Moreover, it modifies the conditions for the exercise of the powers of Parliament - normative power and power of control - but also those of the administrative authorities. The AACC thus transfers competences to bodies that are not linked to the legal order of the European Union or that of its member states, but whose powers may directly or indirectly bind them.
2) "Essential conditions for the exercise of national sovereignty". The AACC was and remains likely to undermine the "essential conditions for the exercise of sovereignty" as understood by the Constitutional Council. On the one hand, it strips national courts of their ordinary jurisdiction in favour of the international tribunal at the whim of foreign investors (see the principle of equality above); on the other hand, it modifies the conditions for the exercise of the powers of parliament - normative power and power of control - but also of the administrative authorities.
The AACC creates more than ten committees (the Joint Committee, specialised committees such as the Joint Management Committee on Sanitary and Phytosanitary Measures, the Committee on Services and Investment, etc.), some of which will be able to exercise their functions from the start of provisional application. Among these committees, the Joint Committee plays a leading role. It brings together representatives of Canada and the European Union but does not include representatives of the Member States, despite the important decision-making and interpretative powers it has. Working with the specialized committees, the Joint Committee interferes with the exercise of the power of Member States and EU bodies in legislative and regulatory matters. The Council and the EU Member States specified in Declaration 19 that on matters falling within the competence of the Member States, European positions would be taken jointly with the Member States. However, in the absence of clarity on the precise delimitation of the respective competences as well as details on its effective implementation, this welcome commitment needs to be clarified. However, the question of the division of competences between the EU and the Member States is a delicate one.
Thus, the EU institutions have so far agreed to consider the AACC as a mixed agreement; however, it is not clear whether the provisions chosen by the EU for a provisional entry into force of the AACC cover only exclusive and undisputed competences of the Union. Furthermore, the AACC provides for the parties to establish regulatory cooperation mechanisms to reduce non-tariff barriers to trade through the harmonisation or mutual recognition of their standards. These mechanisms, notably provided for in Chapter 21 of the Agreement, create new constraints on the "law-making" function. These constraints risk undermining the "essential conditions for the exercise of national sovereignty", as defined in the jurisprudence of the Constitutional Council. While it is explicitly recalled in the joint interpretative instrument that these mechanisms are voluntary, the risk that the State may have to pay very substantial compensation in the event of a complaint before the international tribunal by private investors or simply be dragged into a long and costly procedure is likely to dissuade national authorities from evading the regulatory cooperation mechanisms.
Irrespective of regulatory cooperation, the ability for foreign investors to bring claims against the State before the international tribunal could act as a deterrent when adopting new legislation that might be deemed incompatible with the requirements of the AACC. This is all the more true since the State is also exposed to other remedies, this time reserved to the parties to the agreement (here, Canada), either before the WTO Dispute Settlement Body (DSB) or before the dispute settlement mechanism between the parties provided for in the AACC (see Article 29.3). The AACC thus transfers competence to bodies (Joint Committees, specialized committees, tribunal competent for the settlement of disputes between public authorities and investors) which are not linked to the legal order of the European Union or that of its Member States but whose powers may directly or indirectly bind them. It is all the more necessary to verify the compatibility of these transfers of normative or jurisdictional competences (see the analysis under 1) with the Constitution since the conditions for denouncing such a binding agreement in areas concerning "the essential conditions for the exercise of national sovereignty" are not clearly defined. In particular, the possibility for a Member State to denounce the agreement unilaterally is not certain. Certain intra-European declarations do claim to clarify the process for stopping provisional application following a possible ruling of unconstitutionality by a constitutional court or the definitive failure of a national ratification process. However, they do not specify what precisely is meant by this notion of definitive failure. After notification by the Member State concerned, it will be for the European Union to propose to the Council to vote to terminate the provisional application of the Agreement. This decision would presumably have to be taken unanimously, which does not therefore guarantee the State concerned that provisional application will cease because it cannot ratify the Agreement.
Finally, the procedure for denunciation by a Member State of the Agreement after its full and final entry into force has never been mentioned. While Article 30.9 of the AACC on the termination of the Agreement provides for the modalities of denunciation of the Agreement by a Party, it does not contain any clarification as to what exactly is meant by the term "Party". Does it refer here to the EU and/or the Member States (cf. Art. 1.1 of the AACC)? Moreover, regardless of the procedure for denunciation, the agreement contains a survival clause according to which the whole of Chapter Eight on investment and arbitration will remain in force for 20 years after a possible denunciation of the AACC in order to protect investments made before that date. Again, this may affect the "essential conditions for the exercise of national sovereignty".
3) The Precautionary Principle Precautionary principle: The precautionary principle allows measures to be taken to protect citizens from potential risks, particularly in the area of health or food. In France, the precautionary principle has been enshrined in the Constitution since 2005. Article 5 of the Environment Charter states: "When the occurrence of damage, although uncertain in the state of scientific knowledge, could seriously and irreversibly affect the environment, the public authorities shall ensure, by applying the precautionary principle and within their areas of competence, the implementation of risk assessment procedures and the adoption of provisional and proportionate measures to prevent the occurrence of damage".
Article 9 of the Charter states that it inspires France's European and international action. Indeed, Article 191 TFEU obliges the EU to base its action on "the precautionary and preventive action principles" in the field of the environment - and in practice also in the field of food and human, animal and plant health. However, the AACC agreement, which is relevant in many areas relating to the environment, does not provide for any "measures to ensure compliance with the precautionary principle", according to the formula used by the Constitutional Council in 2008.
In the Joint Interpretative Agreement, the EU, its members and Canada "reaffirm their commitments to precaution in the context of international agreements". However, the scope of this commitment is limited in that only "precaution" is referred to in the interpretative instrument - not the precautionary principle. However, the consistency and scope, if not of the principle, at least of the required precaution, are subject to variations in different legal systems. They differ, for example, in WTO law, EU law or French constitutional law. While some statements, such as those made by the Commission, Slovenia and Belgium, are more precise, they are not binding on Canada in any case.
The difficulties raised by the AACC concerning the precautionary principle and analysed in the study published by foodwatch in June 2016 and carried out by four European lawyers are thus confirmed and remain relevant. Ultimately, common or individual interpretative instruments do not alter the need to submit the AACC to both the ECJ and the Constitutional Council before ratification.
"How could we accept the AACC, an agreement that not only threatens regulations protecting the environment, social rights or food (GMOs, pesticides, etc...), but also proves to be unconstitutional? », insists Karine Jacquemart, from foodwatch France.
Mathilde Dupré of the Veblen Institute adds: "The AACC touches on the very functioning of democracy and the capacity of states to regulate. In this respect, the Constitutional Council must be seized to verify its legality. »
Politicians are not left out. Yannick Jadot denounces: "Through these agreements, we see Europe, and more specifically the European Commission, unable to make progress on endocrine disruptors, we see Europe giving Canada a free ride by not sanctioning oil sands fuels. And we are going to see companies being able to attack governments as soon as the latter want to take measures to protect the environment, health or public services".
(1) Dominique Rousseau is Professor of Constitutional Law at the Sorbonne Law School, University of Paris 1 Panthéon-Sorbonne, former member of the Conseil supérieur de la magistrature from 2002 to 2006. His research focuses mainly on constitutional litigation and the notion of democracy.
(2) Évelyne Lagrange is Professor of Public Law at the Sorbonne Law School and Director of the Research Master in Public International Law and International Organizations at the University of Paris 1 Panthéon-Sorbonne. Her research focuses in particular on international organizations and the relationship between domestic and international law.
(3) Laurence Dubin is Professor of Public Law at the University of Paris 8 Saint-Denis and Director of the legal research laboratory Forces du Droit. Her research focuses in particular on international trade law.