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Green TD Patrick Costello loses High Court challenge to CETA trade deal

Ms Justice Nuala Butler said the ratification of CETA was a political question and not a constitutional one.

The Green Party's Patrick Costello and his daughter ahead of the 2020 general election.
The Green Party's Patrick Costello and his daughter ahead of the 2020 general election.
Image: Hazel Chu

GREEN PARTY TD Patrick Costello has lost a High Court challenge to the CETA international trade deal after a judge ruled that it “does not entail an unconstitutional transfer of the State’s sovereignty”.

Costello, a TD for Dublin South Central, had lodged the challenge to the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. 

The deputy had argued that the deal could not be ratified without a referendum as it ran contrary to Articles 15 and 34 of the Constitution.

One of the concerns raised by various opponents to the deal is the establishment of a new Investment Court System (CETA Tribunals) that could see private companies sue member states over regulatory decisions. 

In his challenge, Costello had argued that CETA Tribunals involved “an unconstitutional transfer of sovereignty” from the State. 

Costello’s concerns include there is no limit on the value of compensation which may be awarded under the investor tribunal system and neither it, nor an appellate tribunal, will be composed of judges appointed under the Constitution.

He was further concerned about the potential ratification on the Ireland’s ability to introduce regulation, particularly in the environmental sphere.

The State, he argued could be made liable for damages for loss suffered by a Canadian investor as a result of Irish environmental regulations.

In a judgement issued this morning, Ms Justice Nuala Butler dismissed the challenge and said the ratification of CETA was a political question and not a constitutional one. 

“CETA does not entail an unconstitutional transfer of the State’s sovereignty. Consequently, ratification of CETA through Article 29.5.2 is constitutionally appropriate and permissible. It is a matter for the Dáil as to whether it is politically desirable to do so,” the judge said. 

She added: 

Because CETA will operate only at the level of international law, its provisions cannot be characterised as laws made for this State in breach of Article 15.2.

The jurisdiction to be exercised by the CETA Tribunal does have the characteristics of an administration of justice. However, it will not be an administration of justice under the Irish Constitution because the disputes which it will determine are not justiciable under Irish law as they will arise and can be determined only as a matter of international law.

Although investors will have a choice of jurisdiction in which to bring their claims, the choice to bring a claim before the CETA Tribunal does not amount to a subtraction of jurisdiction from the Irish Courts. Consequently, the creation of and conferral of jurisdiction on the CETA Tribunals is not contrary to Article 34.1 of the Constitution. 

Opposition to the CETA deal has been an issue for the government with coalition partners the Green Party seemingly split on whether it should be ratified. 

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Party leader Eamon Ryan TD has affirmed his support for a ratification of the deal but Costello and others such as Neasa Hourigan TD have been vocally opposed. 

A vote to ratify the deal was planned for December 2020 but this was avoided after the deal was referred the Oireachtas European Affairs Committee earlier this year. 

The committee itself is split down the middle on the deal, with the two Green members on opposing sides, Senator Vincent P Martin opposing the ratification and Deputy Francis Noel Duffy in favour. 

- With reporting by Aodhan O Faolain 

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Rónán Duffy

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