A Supreme Court judge would dismiss an appeal challenging the constitutionality of ratifying the EU-Canada Comprehensive Economic and Trade Agreement (CETA), concluding that the alleged constitutional breaches had not been established on the agreement’s text or probable application.
In his judgment dated 11 November 2022, Mr Justice John MacMenamin said the appellant, Patrick Costello, had not shown that CETA would probably breach Article 15.2, which reserves law-making power to the Oireachtas, or Article 34, which provides for the administration of justice by courts established under the Constitution. The appeal arose from the High Court’s dismissal of Costello’s claim that ratification required a constitutional referendum.
Costello argued that the prospect of substantial compensation awards to Canadian investors could deter the Oireachtas from legislating, including on environmental matters. He also argued that CETA’s proposed investment tribunals could exercise judicial power and that enforcing their awards could conflict with Irish court decisions. These were the appellant’s submissions, not findings that such awards or conflicts had occurred.
MacMenamin J. described the legislative-chill claim as hypothetical and said it was a matter for the Oireachtas to assess. On the tribunal issue, he said CETA disputes would generally arise under international law and would not be directly justiciable under Irish law. He acknowledged a possible future conflict between a CETA award and a final Irish court decision, but held that the possibility was too remote to establish unconstitutionality in this appeal.
The judgment noted that parts of CETA, including the investment tribunal provisions in Chapter 8, were not in force. It also discussed proposed interpretations and amendments concerning public policy, climate measures and investor compensation, which were still under consideration and negotiation at the time. Those proposals were not final terms of the agreement.
MacMenamin J. proposed affirming the High Court order and dismissing the appeal. He also observed that ratification should be addressed through legislation, including amendments to the Arbitration Act 2010 and its schedules, to protect constitutional values. His proposed answers to the appeal’s questions included that ratification was not required by EU membership and that amending the arbitration legislation would permit ratification.
This is MacMenamin J.’s judgment and proposed order. The source does not set out the Supreme Court’s collective final order.