Abstract
This paper explores aspects of Opinion 1/17, handed down by the Court of Justice on 30 April 2019, as an example of the specific procedure of Article 218(11) TFEU and the Court’s evolving practice. The prior Opinion procedure serves to prevent the complications that would arise, both internally and externally, if an international treaty were concluded by the EU and then subsequently found to be incompatible with primary EU law. Opinion 1/17 raised issues of institutional and substantive compatibility, in the form of the principle of autonomy and compliance with the Charter of Fundamental Rights. In handling both, the Court’s approach was characterised by its insistence on the reciprocal nature of the CETA relationship, the separation of the CETA system from EU law, the ability of the EU to engage with such independent and reciprocal dispute settlement processes, and its assessment of the way in which the agreement would be implemented. The Opinion represents an example of the explanatory or didactic form of reasoning typical of recent Opinions, as well as breaking new ground in its conception of an ‘envisaged’ agreement.
Highlights
This paper explores aspects of Opinion 1/17, handed down by the Court of Justice on 30 April 2019, as an example of the specific procedure of Article 218(11) TFEU and the Court’s evolving practice
The prior Opinion procedure serves to prevent the complications that would arise, both internally and externally, if an international treaty were concluded by the EU and subsequently found to be incompatible with primary EU law
Opinion 1/17, handed down by the Court of Justice on 30 April 2019,1 concerned the compatibility with the EU Treaties of the projected Comprehensive Economic and Trade Agreement between the EU and Canada (CETA).[2]
Summary
Opinion 1/17, handed down by the Court of Justice on 30 April 2019,1 concerned the compatibility with the EU Treaties of the projected Comprehensive Economic and Trade Agreement between the EU and Canada (CETA).[2] The Opinion had been requested by Belgium under Article 218(11) Treaty on the Functioning of the European Union (TFEU), the only judicial procedure directed at international agreements, which is – uniquely – embedded in the procedural rules for treaty-making, rather than the provisions on the jurisdiction of the Court.[3]. In this case, as in a few others,[19] the request was made after the signature of the agreement but before its formal conclusion. The CETA Opinion is notable for the fact that it was made clear by the Member State asking for the Opinion that its own ratification of the agreement, and its conclusion by the Union, was linked to the result of the Opinion procedure
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