OPINION OF ADVOCATE GENERAL

BOT

delivered on 29 January 2019 ( 1 )

Opinion 1/17

Request for an opinion by the Kingdom of Belgium

(Opinion pursuant to Article 218(11) TFEU — Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA) — Resolution of disputes between investors and States (ISDS) — Establishment of a Tribunal and an Appellate Tribunal — Compatibility with primary EU law — Requirement to respect the autonomy of the EU legal order and of the judicial system of the European Union — Applicability of the Charter of Fundamental Rights of the European Union to the exercise, by the European Union, of its competence to conclude an international agreement — Articles 20 and 21 of the Charter — Principle of equal treatment — Article 47 of the Charter — Right of access to an independent and impartial tribunal)

Table of contents

I. Introduction II. The context in which the request for an opinion was made III. The request for an opinion from the Kingdom of Belgium A. The compatibility of the CETA with the exclusive jurisdiction of the Court over the definitive interpretation of EU law 1. The EU judicial system as a guarantee of the autonomy of the EU legal order 2. The conditions for the establishment of a specific dispute settlement mechanism by means of the international agreements concluded by the European Union 3. The requirement of reciprocity in the protection afforded to the investors of each Party 4. A mechanism consistent with the CETA’s lack of direct effect 5. The judgment in Achmea is not prejudicial to the compatibility of the ICS with the requirement of the autonomy of the EU legal order 6. The guarantees provided for by the Parties in order to preserve the exclusive jurisdiction of the Court over the definitive interpretation of EU law 7. The ICS does not affect the role of national courts and tribunals of ensuring the effective application of EU law 8. Consistency with the objectives of the European Union’s external action 9. The establishment of a mechanism for the prior involvement of the Court and the possibility of a full review of the awards by the courts and tribunals of the Member States are not necessary B. The general principle of equal treatment and the requirement that EU law is effective C. The compatibility of Section F of Chapter 8 of the CETA with the right of access to an independent and impartial tribunal 1. General considerations 2. Access to the CETA Tribunal for small and medium-sized enterprises 3. The conditions governing remuneration of the Members of the Tribunal and Appellate Tribunal 4. The conditions relating to the appointment and possible removal of Members of the Tribunal and of the Appellate Tribunal 5. The rules of ethics applicable to Members of the Tribunal and of the Appellate Tribunal IV. Conclusion

I. Introduction

1. On 30 October 2016 Canada, of the one part, and the European Union and its Member States, of the other part, signed in Brussels a ‘Comprehensive Economic and Trade Agreement’, better known by the acronym ‘CETA’. ( 2 )

2. Like, inter alia, the agreement to which Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017 relates, ( 3 ) the CETA is a ‘new generation’ free trade agreement in that it contains, in addition to the classical provisions on the reduction of customs duties and of non-tariff barriers to trade in goods and services, rules relating, inter alia, to investment, public procurement, competition, intellectual property protection and sustainable development.

3. Although it has been signed, the CETA has not yet been concluded within the meaning of Article 218(6) TFEU. It is, however, partly applicable on a provisional basis. ( 4 )

4. The present case concerns a request for an opinion submitted to the Court on 7 September 2017 by the Kingdom of Belgium pursuant to Article 218(11) TFEU.

5. The request for an opinion submitted by the Kingdom of Belgium reads as follows: ‘Is Chapter 8 (‘Investments’), Section F (‘Resolution of investment disputes between investors and states’) of the [CETA] between Canada, of the one part, and the European Union and its Member States, of the other part, signed in Brussels on 30 October 2016, compatible with the Treaties, including with fundamental rights?’

6. The purpose of Section F of Chapter 8 of the CETA, which contains Articles 8.18 to 8.45 of that agreement, is to establish a mechanism for the resolution of disputes between investors and States (ISDS), also known as the Investor-State Dispute Settlement system.

7. To that end, that section provides for the establishment of a Tribunal (‘the Tribunal’ or ‘the CETA Tribunal’) and an Appellate Tribunal (‘the Appellate Tribunal’ or the ‘the CETA Appellate Tribunal’) as well as, in the longer term, a multilateral investment tribunal and appellate mechanism which would bring to an end the functioning of the initial tribunals. The aim is thus to establish an ‘Investment Court System’ (ICS), of which the CETA Tribunal would be merely a first stage. That Tribunal would therefore constitute the first actual step to implement the reform of the ISDS system outlined by the European Commission in 2015, ( 5 ) in response to the public consultation on investment protection and ISDS. ( 6 ) Section F of Chapter 8 of the CETA thus provides for an institutionalised procedural framework with the aim of settling any disputes between an investor of one Party and the other Party concerning the interpretation and application of the CETA, which is intended to remedy the shortcomings ascribed to the classical ISDS system.

8. By introducing that reformed mechanism within the CETA, the European Union is supporting the initiative of a global reform of the model for settling disputes between investors and States through the development of the current ad hoc ISDS system, which is based on the principles of arbitration, into an ICS, the culmination of which would be the establishment of a permanent multilateral court. ( 7 )

9. In its request for an opinion, the Kingdom of Belgium makes known to the Court its doubts as to whether Section F of Chapter 8 of the CETA is compatible with the Treaties. In essence, those doubts concern the effects of that part of the agreement on the exclusive jurisdiction of the Court over the definitive interpretation of EU law, the general principle of equal treatment, the requirement that EU law is effective and the right of access to an independent and impartial tribunal.

II. The context in which the request for an opinion was made

10. International investment law has two separate components: substantive law consisting of rules which seek to protect foreign investments and a procedural component pertaining to matters of transnational arbitration.

11. In that regard, the ISDS system enables disputes to be settled where an investor considers that a State has infringed its obligations under an international investment agreement. The insertion of clauses relating to an ISDS system into an international investment agreement thus offers foreign investors the opportunity to bring a dispute between them and the State in which the investment was made not before the courts of that State but before an ad hoc arbitration tribunal, in accordance with the rules to which that agreement refers.

12. The increasing recourse to arbitration between investors and States is a relatively recent phenomenon which has emerged in response to the perceived shortcomings in the judicial systems of certain host States, which have fostered distrust amongst investors in those systems. This method of dispute settlement thus seeks to provide investors with a neutral and efficient means of settling a dispute, which in turn is intended to encourage investment by offering reassurance to economic operators who decide to invest in another country.

13. The dispute settlement method involved in investment arbitration has therefore been guided, since its inception, by the will of the Parties to outsource the settlement of disputes between foreign investors and the host State. ( 8 ) This method of dispute settlement is also intended to replace the diplomatic protection whereby the State of nationality of the investor takes over the latter’s claim vis-à-vis the host State of the investment. ( 9 ) It is, therefore, a continuation of the tendency of seeking to remove investment-related disputes from the political and diplomatic spheres. The investor-State dispute settlement system is thus an alternative to the other method of settling investment disputes involving arbitration between States, which has the same disadvantages as diplomatic protection, that is to say, from the investor’s perspective, a relationship of dependence vis-à-vis his State of origin and, from the perspective of that State, the risk that the action brought may be an imposition on its relations with other States.

14. In parallel with the acquisition of an external competence in relation to direct investments, the European Union had to devise a model for the settlement of disputes linked to compliance with the standards of protection contained in the free trade agreements which it has concluded with third States. ( 10 ) The arbitration clauses contained in bilateral investment treaties are, under international investment law, regarded as a key component of the protection of foreign investments in the host State.

15. However, investment arbitration in its traditional form is the subject of criticism, in particular as regards the lack of legitimacy and of guarantees that the arbitrators are independent, the lack of consistency and foreseeability of the awards, the inability to review the award made, the risk of ‘regulatory chill’ ( 11 ) and the high costs of the proceedings.

16. In the light of the criticisms made of investment arbitration, the acceleration of the negotiations between the European Union and third States with a view to developing bilateral free trade relations which cover the issue of investment poses a number of challenges, both political and legal.

17. One of the most significant of those challenges is to define a model which allows the European Union and its Member States to take as a basis an arbitration practice which constitutes the rule in relation to the settlement of disputes concerning the protection of foreign investments, whilst making improvements to the traditional model in order, first, to address the criticisms relating to the functioning of arbitration tribunals as well as the legitimacy of an arbitration scheme between investors and States and, second, to be consistent with the main principles governing the dispute settlement mechanisms within the EU legal order.

18. The model chosen is, in several respects, marked by certain original features which give it a hybrid nature, a form of compromise between an arbitration tribunal and an international court. Accordingly, the path chosen by the European Union within the framework of the CETA is that of institutionalisation and of a process of legislating the mechanism for settling investment disputes, striking a balance between tradition and innovation in terms of investment arbitration. The experimental dimension in this regard must be highlighted, since the European Union is at the forefront of a movement the future of which will determine whether — from a legal standpoint — it is likely to be continued. ( 12 )

19. The European Union had to adopt a pragmatic approach to the negotiations on this point with third States, taking into account the fact that arbitration between investors and States is regarded by its partners, as well as by the investors themselves, as an essential component in the protection of investors. ( 13 ) The immediate focus for the European Union was thus to adopt that method of dispute settlement whilst at the same time making improvements to it, with a view, in the longer term, to achieving more substantial developments, such as the proposal for a multilateral investment tribunal. ( 14 )

20. The CETA thus contains a dispute settlement mechanism the form of which has developed in the course of the negotiations so as, inter alia, to take into account the findings of a related public consultation launched by the Commission. ( 15 ) The spirited debate which surrounded the appropriateness of, and the features of, such a mechanism are due primarily to the fact that arbitration in investment matters is a forum for clashes between public and private interests. It therefore necessarily raises issues which may have an impact on public policy.

21. At present, the reform initiated by the European Union, as expressed in the CETA, is based on two main aspects, namely, first, the explicit reference to the right of the Parties to regulate in the general interest, coupled with more specific rules pertaining to investment protection in order to bring to an end certain exorbitant interpretations of the rules in question, ( 16 ) and, second, the will to move towards a judicial system characterised, inter alia, by the independence and the impartiality of its members and the transparency of its procedures.

22. This request for an opinion concerns the latter system, in its current state of development, which is moving away from traditional arbitration to move closer to a judicial system. The provisions of the CETA which relate to that system are not amongst those which are provisionally applied. ( 17 )

23. Although it is entitled ‘Resolution of investment disputes between investors and states’, that system covers not only those cases in which an investor of a Member State submits a claim against Canada and those in which a Canadian investor submits a claim against a Member State, but also those cases in which a Canadian investor submits a claim against the European Union.

24. The main provisions on the organisation and establishment of the ICS are contained in Section F of Chapter 8 of the CETA. Certain matters are, however, referred for decisions to be taken by the CETA Joint Committee provided for in Article 26.1 of that agreement.

25. The main feature of this dispute settlement mechanism is the constitution of a permanent tribunal to handle claims submitted by investors against a Party. ( 18 ) The Tribunal is composed of fifteen Members appointed by the CETA Joint Committee ( 19 ) for a five-year term, renewable once. ( 20 )

26. The Members of the Tribunal must possess the qualifications required in their respective countries for appointment to judicial office or be jurists of recognised competence, and must have demonstrated expertise in public international law. ( 21 ) The Members of the Tribunal must be independent and comply with rules to avoid conflicts of interest. ( 22 ) The Tribunal is to hear cases in divisions generally consisting of three of its Members, all of whom are appointed by the President of the Tribunal on a rotation basis, ensuring that the composition of the divisions is random and unpredictable. ( 23 )

27. An appeal against the Tribunal’s awards may be brought before a permanent Appellate Tribunal. ( 24 ) The appeals may be based inter alia on errors of law or manifest errors in the appreciation of the facts, including the appreciation of relevant domestic law. ( 25 ) The Members of the Appellate Tribunal are to be appointed by the CETA Joint Committee. ( 26 ) They must possess the same qualifications as the Members of the Tribunal and are subject to the same rules of ethics. ( 27 )

28. Under Article 8.41.1 of the CETA, ‘an award issued pursuant to this Section shall be binding between the disputing parties and in respect of that particular case’.

29. As regards the substantive provisions, the new approach couples the assertion of the Parties’ right to regulate ( 28 ) with an effort to clarify the definition of the fundamental protective rules. ( 29 )

30. Thus, the CETA seeks to promote cross-border investment between the European Union and Canada by affording the investors of the Parties a high level of protection of their investments whilst protecting the regulatory power of each Party. ( 30 )

31. I would further point out that, when the CETA was signed, a joint interpretative instrument ( 31 ) was established, paragraph 6 of which lays down specific interpretative guidance concerning the ICS. In addition, at the time of the signature of that agreement, the Commission and the Council lodged Statement No 36, in which those institutions set out the measures to be adopted in order to establish the ICS.

32. Having provided the above description, I observe first of all that, in order to respond to the request for an opinion made by the Kingdom of Belgium, I will set aside, despite their significance, the political and economic aspects of the issue brought before me, in that, as I believe it necessary to point out, it falls entirely within the discretion of the EU institutions to choose to adhere to a well-established international arbitration practice in implementation of the common commercial policy.

33. Accordingly, it is not for me to take a view on the appropriateness, from a political perspective, of providing for a method of dispute settlement of this kind in the agreements which the European Union negotiates with third States, or on the economic impact which the ISDS system may have in terms of attracting foreign investors and the development of their operations. Those factors fall within the discretion of the EU institutions. ( 32 ) Furthermore, they are the outcome of the democratic debate conducted within the European Union and in the Member States. The only issue to be examined by me is whether, by adopting the practice of investment arbitration whilst at the same time developing it with a view to moving towards a judicial model, the agreement envisaged is, from a purely legal perspective, compatible with primary EU law.

III. The request for an opinion from the Kingdom of Belgium

34. By its request for an opinion, the Kingdom of Belgium seeks to assist in clarifying the legal context within which the CETA must be incorporated, without itself taking a view on how, in its opinion, the questions put to the Court should be answered.

35. The Kingdom of Belgium also states that it is aware that certain measures are to be adopted in implementation of the CETA and of Statement No 36, which could influence the opinion of the Court.

36. The request for an opinion is structured around the following three issues: the jurisdiction of the Court, the principle of equal treatment and the requirement that EU law is effective, and the right of access to an independent and impartial tribunal.

37. As a preliminary point, with regard to the admissibility of the request from the Kingdom of Belgium, the preventive nature of the opinion procedure must be stressed. I observe, in that regard, that, ‘under Article 218(11) TFEU, the Parliament, the Council, the Commission or a Member State may obtain the Opinion of the Court of Justice as to whether an envisaged agreement is compatible with the provisions of the Treaties. That provision has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements binding upon the EU’. ( 33 ) After all, ‘a possible decision of the Court of Justice, after the conclusion of an international agreement binding upon the EU, to the effect that such an agreement is, by reason either of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaties could not fail to provoke, not only in the internal EU context, but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries’. ( 34 )

38. As I have previously stated, although it has been signed, the CETA has not yet been concluded within the meaning of Article 218(6) TFEU. That agreement therefore remains ‘envisaged’ within the meaning of Article 218(11) TFEU.

A. The compatibility of the CETA with the exclusive jurisdiction of the Court over the definitive interpretation of EU law

39. The Kingdom of Belgium observes that, in paragraph 246 of Opinion 2/13, the Court set out ‘the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law’.

40. That Member State likewise recalls the reasons why the Court took the view, in Opinion 1/09 of 8 March 2011, ( 35 ) that the draft international agreement establishing a European and Community Patents Court was incompatible with EU law.

41. After pointing out that Article 8.18.1 of the CETA authorises the Tribunal to examine whether an instrument of secondary EU law is compatible with the provisions of Sections C and D of Chapter 8 of that agreement, the Kingdom of Belgium observes that, within the context of that examination, that Tribunal may regularly be faced with questions of interpretation of EU law. Referring to Article 8.31.2 of the CETA, the Kingdom of Belgium notes that, where there is no prevailing interpretation, the Tribunal would itself be required to interpret EU law.

42. Although, according to that Member State, the CETA differs from the mechanism envisaged in Opinion 1/09 in so far as the Tribunal will not be directly called upon to decide a dispute pending before it in the light of EU law as the applicable law, nor to examine the validity of an act of the European Union, rather — like the mechanisms envisaged in Opinions 1/09 and 2/13 — the ICS allows the Tribunal to examine the compatibility of the provisions of secondary EU law with the relevant provisions of the CETA and, to that end, to determine the interpretation of EU law.

43. Since the ISDS system laid down in the CETA does not provide either that the Tribunal must or that it may refer to the Court a preliminary question on the interpretation of EU law (that is to say, there is no mechanism for prior involvement), the Kingdom of Belgium asks whether that system, which may result in final awards of a binding nature, in accordance with the provisions of Article 8.41.1 of that agreement, is compatible with the principle of the exclusive jurisdiction of the Court over the definitive interpretation of EU law.

44. In short, the Kingdom of Belgium wishes to establish whether or not the CETA infringes the principle of the exclusive jurisdiction of the Court over the definitive interpretation of EU law. More specifically, it wants the Court to state whether Article 8.31.2 of that agreement is sufficient to guarantee the uniform interpretation of EU law or whether, on the contrary, given the binding nature of the award, pursuant to Article 8.41.1 of the agreement, that requirement of uniform interpretation, which it is for the Court to ensure, must be found to have been infringed.

45. In order to address this aspect of the request for an opinion, I will begin my analysis where the Court left off in its Opinion 2/15. In that opinion, the Court limited its examination to the division of competences between the European Union and its Member States vis-à-vis the substantive and procedural aspects of the external policy of the European Union relating to investment.

46. In that regard, it must be stated that the Treaty of Lisbon conferred on the European Union exclusive competence in relation to direct investment by providing that such investment falls within the area of the common commercial policy, as is apparent from Article 3(1)(e) and Article 207(1) TFEU. The European Union further has shared competence as regards investment other than direct investment. ( 36 )

47. The Court has made clear that the exclusive competence enjoyed by the European Union under Article 207 TFEU in relation to foreign direct investment extends to all the substantive provisions usually found in a bilateral investment treaty. ( 37 ) However, the European Union shares its competence with the Member States in relation to the provisions on the settlement of disputes between investors and States. ( 38 ) In that regard, in Opinion 2/15, the Court observed that the system in question ‘removes disputes from the jurisdiction of the courts of the Member States’ and that that system must, therefore, be established with the Member States’ consent. ( 39 )

48. In Opinion 2/15, the Court did not, however, examine the issue of the compatibility of the dispute settlement mechanism provided for in an agreement on international investment with EU law, from the perspective of the preservation of its own jurisdiction.

49. The Court is now required, in relation to an agreement of the same kind with Canada, to rule on the possibility of such a dispute settlement mechanism and how such a system might co-exist with the EU judicial system.

1. The EU judicial system as a guarantee of the autonomy of the EU legal order

50. As the Court stated in Opinion 2/13, ‘in order to ensure that the specific characteristics and the autonomy of [the EU legal order] are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law’. ( 40 )

51. In that context, ‘it is for the national courts and for the Court of Justice to ensure the full application of EU law in all Member States and to ensure judicial protection of an individual’s rights under that law’. ( 41 )

52. The Court’s mission is to ‘ensure that in the interpretation and application of the Treaties the law is observed’, as provided for in Article 19(1) TEU. That function of the Court entails responsibility to ‘ensure respect for the autonomy of the European Union legal order thus created by the Treaties’. ( 42 )

53. In Opinion 1/09, the Court pointed out that it shares that responsibility with the national courts. The Court stated that, ‘as is evident from Article 19(1) TEU, the guardians of that legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States’. ( 43 )

54. The Court also takes Article 4(3) TEU as the basis for its finding that ‘the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law’. ( 44 )

55. The Court also pointed out that ‘the national court, in collaboration with the Court of Justice, fulfils a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed’. ( 45 )

56. In particular, ‘the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law …, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties’. ( 46 )

57. The Court has thus firmly asserted ‘the importance of cooperation between the European Union judicature and the national courts and tribunals of the Member States in order to guarantee the constitutional structure of the [EU legal] system’. ( 47 )

58. That specific relationship between the Court and the national courts and tribunals, which is characterised by constant dialogue, both gives expression to and protects the specific legal order, namely the EU legal order. It is for that reason that the Court seeks to protect that relationship from anything which might affect it.

59. That said, I observe, first of all, that the preservation of the autonomy of the EU legal order is not a synonym for autarchy. ( 48 ) It requires merely that the integrity of that legal order, which is based to a great extent on the jurisdiction of the Court to have the final say on EU law and on its cooperation, to that end, with the courts and tribunals of the Member States, is not undermined.

2. The conditions for the establishment of a specific dispute settlement mechanism by means of the international agreements concluded by the European Union

60. It is settled case-law that international agreements concluded by the European Union pursuant to the provisions of the Treaties constitute, as far as the Union is concerned, acts of the institutions of the European Union. ( 49 ) As such, those agreements are, from the date of their entry into force, an integral part of the EU legal order. ( 50 ) Pursuant to Article 216(2) TFEU, ‘agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’. Therefore, in accordance with settled case-law of the Court, ‘those agreements prevail over provisions of secondary [EU] legislation’. ( 51 ) From the date of its entry into force, the CETA will therefore be integrated automatically into the EU legal order, of which it will form part in the same way as other sources of EU legislation. ( 52 )

61. In addition, it follows from Article 19(3)(b) TEU and from point (b) of the first paragraph of Article 267 TFEU that ‘the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception’, ( 53 ) which includes international agreements concluded by the European Union. The Court also has jurisdiction ‘to give rulings on the interpretation of the decisions adopted by the authority established by the Agreement and entrusted with responsibility for its implementation’. ( 54 )

62. That said, it must be recalled, first and foremost, that the applicability before the European Union judicature or before national courts and tribunals of agreements concluded by the European Union may be subject to certain limits, in particular where the Court takes the view that those agreements do not confer on individuals rights upon which they may rely before the courts. In that regard, the Court is called upon to examine the nature and the broad logic of the international agreement at issue and to ascertain whether, as regards their content, the provisions of that agreement are unconditional and sufficiently precise. ( 55 )

63. With regard to the CETA, any examination by the Court as to whether or not that agreement is capable of having a direct effect is unnecessary, since Article 30.6 of the agreement expresses the explicit will of the Parties to rule out such an effect. Paragraph 1 of that article provides that the CETA cannot be invoked ‘directly … in the domestic legal systems of the Parties’. ( 56 ) It follows that, whilst forming an integral part of the EU legal order when it enters into force, the agreement envisaged may not be relied on directly in its own right. Neither the courts of the European Union nor the courts or tribunals of the Member States may therefore apply that agreement directly in the disputes which are brought before them. There are therefore two co-existing legal systems, interference between which has been deliberately limited.

64. In the case of an international agreement concluded by the European Union, forming an integral part of the EU legal order means that the provisions of that agreement must be entirely compatible with the Treaties and with the constitutional principles stemming therefrom. ( 57 ) In order for the constitutional autonomy of the EU legal order to be respected, it is therefore essential that the international agreements concluded by the European Union with third States do not undermine the delicate balance struck between ‘the international derivation and the specificity of EU law’. ( 58 )

65. In that regard, the Court has held on several occasions that ‘an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not, in principle, incompatible with EU law’. ( 59 ) According to the Court, ‘the competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit itself to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions’. ( 60 ) In Opinion 2/15, the Court stated that, in the same way, the competence of the European Union to conclude international agreements necessarily entails the power to submit itself to the decisions ‘of a body which, whilst not formally a court, essentially performs judicial functions’. ( 61 )

66. The Court has, however, clarified that ‘an international agreement may affect its own powers only if the indispensable conditions for safeguarding the essential character of those powers are satisfied and, consequently, there is no adverse effect on the autonomy of the EU legal order’. ( 62 )

67. According to the Court, ‘preservation of the autonomy of the [EU] legal order requires therefore, first, that the essential character of the powers of the [European Union] and its institutions as conceived in the Treaty remain unaltered’. ( 63 ) Second, it requires that the procedure for resolving disputes will not ‘have the effect of binding the [European Union] and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of [EU law]’. ( 64 )

68. In particular, in Opinion 2/13, the Court observed that ‘any action by the bodies given decision-making powers by the [Convention for the Protection of Human Rights and Fundamental Freedoms ( 65 )], as provided for in the agreement envisaged, must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law’. ( 66 )

69. As the Court stated in Opinion 1/09, it has given opinions in favour of the establishment, by means of international agreements, of judicial systems designed, in essence, to resolve disputes on the interpretation or application of the actual provisions of the international agreements concerned, and which did not affect the powers of the courts and tribunals of Member States in relation to the interpretation and application of EU law, or the power, or indeed the obligation, of those courts and tribunals to request a preliminary ruling from the Court and the power of the Court to reply. ( 67 ) By contrast, the Court opposed the establishment of an international court called upon to interpret and apply not only the provisions of the agreement which established it but also other instruments of EU law, and which might be called upon to determine a dispute pending before it in the light of the fundamental rights and general principles of EU law, or even to examine the validity of an act of the European Union. ( 68 )

70. It is therefore necessary to examine whether the jurisdiction conferred by Section F of Chapter 8 on the CETA Tribunal as regards the interpretation and application of the provisions of the CETA might result in the EU institutions and, in particular, the Court being required to adopt a particular interpretation of the rules of EU law in the exercise of the powers conferred on them by the Treaties. More specifically, does Section F of Chapter 8 of the CETA constitute a breach of the ‘principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law’ ( 69 )?

71. Before addressing the core of that issue, it is first necessary, in my view, to explain the reasons why the requirement of reciprocity in the protection afforded to the investors of each Party must be taken into account when examining whether Section F of Chapter 8 of the CETA adversely affects the autonomy of the EU legal order.

3. The requirement of reciprocity in the protection afforded to the investors of each Party

72. When an investment is made by a natural or legal person in a Member State of the European Union, that investment is subject to the application of the law of that State, of which EU law forms an integral part. Where the application of that law is contested, the courts or tribunals of the State concerned will have to settle the dispute on the basis of the law which it is their duty to ensure is observed, where appropriate after making a reference to the Court for a preliminary ruling. By bringing proceedings before a national court or tribunal, the investor may seek an order annulling a national measure and/or damages.

73. Thus, any Canadian undertaking investing in a Member State of the European Union is, in relation to that investment, subject to the law of that Member State, which includes EU law. It is clear that an investor from a third State who wishes to invest in a Member State will have at his disposal a body of law protecting that investment as well as legal remedies to assert his claims. Without preaching to or making groundless accusations about the commercial partners of the European Union, it cannot however be taken for granted that, in the third States with which the European Union wishes to develop relations in terms of investment, EU investors will enjoy an equivalent level of protection from a substantive and procedural point of view. It is for this reason that the European Union must, in order to conduct its commercial policy, negotiate with such third States, on a reciprocal basis, substantive and procedural rules on the protection of the investments made between the two Parties.

74. The existence of different standards of protection in the domestic law of the Parties therefore makes it necessary to conclude a bilateral agreement which enables the investors of each Party to obtain the same protection when they make an investment in the territory of the other Party.

75. The CETA was negotiated on the basis of reciprocity between the Parties. That agreement thus seeks to grant the investors of each of those Parties equivalent substantive and procedural protection. This type of agreement therefore seeks to ensure that EU undertakings investing in third States, on the one hand, and the undertakings of third States investing in the European Union, on the other, operate on an equal footing. With that in mind, it is therefore essential that the substantive and procedural standards of protection enjoyed by EU undertakings investing in third States are equivalent to those enjoyed by the undertakings of third States investing in the European Union.

76. More specifically, the fear of foreign investors of being placed at a disadvantage as compared with national investors when they bring proceedings before national courts or tribunals is thus expressed in the reciprocal grant of the possibility of accessing a specific dispute settlement mechanism.

77. In that regard, it must be observed that reciprocity must be regarded as being one of the guiding principles of the EU’s external relations. ( 70 ) The application of the principle of reciprocity to the EU’s external treaty relations is justified by the fact that, as a subject of international law, the European Union is subject to the rules of international law by which it has voluntarily agreed to be bound, of which the obligation of reciprocity is an integral part. ( 71 )

78. Since the CETA is based on a requirement of reciprocal protection of the investors of each Party, the negotiators of that agreement took the view that that agreement had to contain provisions, such as those found in Sections C and D of Chapter 8 of the CETA, which require each of the Parties to afford adequate and equivalent protection to the investors of the other Party. Such efforts to ensure reciprocity were taken into account by the Court in Opinion 2/15 where it stated that, ‘in the light of the fact that the free movement of capital and payments between Member States and third States, laid down in Article 63 TFEU, is not formally binding on third States, the conclusion of international agreements which contribute to the establishment of such free movement on a reciprocal basis may be classified as necessary in order to achieve fully such free movement, which is one of the objectives of Title IV (‘Free movement of persons, services and capital’) of Part Three (‘Union policies and internal actions’) of the FEU Treaty’. ( 72 )

79. As the Commission observed in its concept paper of 5 May 2015, ( 73 )‘as the EU upholds a high standard in promoting and protecting investment in its territory, [it] has a natural interest in obtaining similarly credible and enforceable guarantees for EU investments and investors abroad’. ( 74 )

80. Accordingly, the EU’s ability to promote and encourage the activity of EU investors in third States and to attract foreign investors in its territory turns to a great extent on the conclusion of agreements with third States in order to provide for adequate and reciprocal protection of such investments.

81. The adoption, within the context of an international agreement between, of the one part, the European Union and its Member States and, of the other part, a third State, on a reciprocal basis, of substantive and procedural rules on investments can be explained by the fact that the relations between those Parties are not based on mutual trust, contrary to the situation prevailing as regards the relations between Member States.

82. As the Court recently observed in its judgment of 6 March 2018, Achmea, ( 75 )‘EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the law of the EU that implements them will be respected’. ( 76 ) However, the relations which the EU establishes with third States are not based on such a premiss. Therefore, when they negotiate an agreement such as the CETA, the EU institutions seek to ensure that EU investors will enjoy in third States the same level of protection as that afforded by the European Union and its Member States to foreign investors. Accordingly, reciprocity is sought on the basis of a standard of protection freely negotiated between the Parties, with those Parties seeking to agree on the rules of protection which they are prepared to grant, on a reciprocal basis, to the investors from each of those two Parties.

83. Defining such rules on the protection of foreign investments also necessitates determining the nature of and the rules governing the dispute settlement mechanism which will allow compliance with those rules to be guaranteed.

84. Neither of the Parties necessarily trusts the judicial system of the other Party to ensure that the rules contained in the agreement are observed. Those two Parties must therefore agree on a neutral dispute settlement mechanism which, by virtue of its characteristics, will gain their trust and that of the investors. By reassuring foreign investors vis-à-vis the protection of their investments, the host State will be able to attract new investment. That is the main objective of investment agreements. From that perspective, establishing a dispute settlement mechanism may appear to be the cornerstone of the system of protection introduced.

85. It is therefore impossible to examine whether the autonomy of EU law is sufficiently preserved by the CETA unless account is taken of that reciprocal aspect of the desired substantive and procedural protection. ( 77 )

86. As part of such examination, the fact that the other Party to the agreement envisaged is Canada, whose judicial system is presumed to offer sufficient guarantees, does not appear to me to be decisive, since it is in reality a standard mechanism which is intended to be inserted into international agreements with third States which could not offer the same guarantees. Thus, the analysis should not vary according to the third State concerned, since what is at issue here is the definition of a model which is consistent with the structural principles of the EU legal order and which, at the same time, may be applied in all commercial agreements between the European Union and third States. In any event, in the course of the present proceedings, it has become clear that there are differences in the substantive protection afforded to foreign investors in each of the Parties. ( 78 )

87. It follows from the foregoing that, even assuming that, from the European Union’s perspective, it may appear redundant to make provision in an international investment agreement for rules on the protection of investors which might, in certain respects, overlap with rules of EU law in force and, therefore, call into question the introduction of a specific dispute settlement mechanism, it must be observed that such reasoning fails to take account of the fact that there is not necessarily symmetry between the substantive and procedural level of protection existing within the European Union and within the third States with which the European Union wishes to develop its relations in the field of investment. It is indeed such potential asymmetry which necessitates the negotiation of a common standard of substantive and procedural protection, the only means of guaranteeing reciprocity in the application of the agreement concerned and of ensuring effective and uniform protection for EU investors when they make investments in third States.

88. Contrary to what is sometimes claimed, establishing a dispute settlement mechanism such as that under examination does not, in my view, mean calling into question the judicial system of the European Union and of its Member States or the ability of that system to deal effectively, independently and impartially with actions brought by foreign investors. By establishing such a mechanism in its bilateral relations in the field of investment, the European Union intends to satisfy a demand for neutrality and speciality in the resolution of disputes between investors and States, bearing in mind that it will also benefit European investors when they invest in a third State.

89. In order to rule on the compatibility of the dispute settlement mechanism provided for in Section F of Chapter 8 of the CETA with EU primary law, it is therefore necessary to broaden the perspective and to take account of the need to protect EU investors when they invest in third States.

90. Viewing the matter from that perspective is also liable to undermine significantly the argument that there would be a considerable overlap between the rules on investment protection contained in EU law and those laid down in the CETA, which would render redundant the introduction of a dispute settlement mechanism in addition to the possible remedies before the courts of the European Union and of the Member States.

4. A mechanism consistent with the CETA’s lack of direct effect

91. I observe that the Court has already held that ‘EU institutions which have power to negotiate and conclude [an agreement concluded by the European Union with third States] are free to agree with the non-Member States concerned what effects the provisions of the agreement are to have in the internal legal order of the contracting parties’. ( 79 ) As the Commission points out in its observations, in practice all the free trade agreements recently concluded by the European Union expressly exclude their direct effect. The main reason for excluding the direct effect of those agreements is to guarantee effective reciprocity between the parties, in a manner consistent with the objectives of the common commercial policy.

92. With regard to the ability to rely on the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994, as well as the agreements contained in Annexes 1 to 3 of that agreement (jointly ‘the WTO agreements’), ( 80 ) before the European Union judicature with a view to reviewing the conformity with EU law of those agreements, the Court adopted, with a view to ruling out in principle the ability to rely on those agreements, ( 81 ) a line of reasoning which takes account of the requirement of ‘reciprocity’ so as not to ‘deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s trading partners enjoy’. ( 82 ) In that regard, in order to adopt its own position, the Court takes account of the position adopted by those partners on the ability to rely directly on the WTO agreements, by observing that ‘some of the contracting parties, including the European Union’s most important trading partners, have concluded from the subject matter and the purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law’. ( 83 ) The Court points out that ‘such lack of reciprocity, if accepted, would risk introducing an imbalance in the application of the WTO agreements’. ( 84 ) Thus, the approach adopted bears witness to the Court’s wish, in the interests of preserving reciprocity in the application of the agreement, not to place the European Union at a disadvantage as compared to its most important trading partners, thereby preserving the European Union’s position on the international stage. ( 85 )

93. As I have previously stated, the Parties expressly chose to rule out the direct effect of the CETA. ( 86 )

94. In order to preserve the balance between the Parties in the application of that agreement, and thus to maintain reciprocity in the implementation of the undertakings entered into by them, the Parties decided to establish a specific mechanism for the resolution of disputes between investors and States. Excluding the direct effect of the agreement thus strengthens the value of such a mechanism. Since it is not the role of the domestic courts of each of the Parties to apply the standards of protection defined in the CETA, it is consistent to provide for a dispute settlement mechanism which lies outside the Parties’ domestic judicial system.

5. The judgment in Achmea is not prejudicial to the compatibility of the ICS with the requirement of the autonomy of the EU legal order

95. In the case which gave rise to the judgment in Achmea, the Court was asked to rule on whether Articles 267 and 344 TFEU are to be interpreted as precluding a provision contained in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (‘the BIT’), under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitration tribunal, whose jurisdiction that Member State has undertaken to accept.

96. In the judgment in Achmea, the Court answered that question in the affirmative.

97. In order to arrive at that solution, it began by recalling that, according to settled case-law, ‘an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal system, observance of which is ensured by the Court. That principle is enshrined in particular in Article 344 TFEU, under which the Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for in the Treaties’. ( 87 )

98. The Court went on to emphasise the fact that the relations between Member States are governed by the principle of mutual trust in the observance of EU law and that it is in that context that ‘the Member States are obliged, by reason inter alia of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure in their respective territories the application of and respect for EU law, and to take for those purposes any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU’. ( 88 )

99. After stressing the fundamental role conferred by Article 19 TEU on the national courts and tribunals and on the Court to ‘ensure the full application of EU law in all Member States and to ensure judicial protection of the rights of individuals under that law’ ( 89 ) and emphasising the fact that ‘the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU’, ( 90 ) the Court examined the characteristics of the dispute settlement mechanism established by the BIT.

100. In that regard, it found, firstly, that the arbitration tribunal referred to in Article 8 of the BIT could be ‘called on to interpret or indeed to apply EU law, particularly the provisions concerning the fundamental freedoms, including freedom of establishment and free movement of capital’. ( 91 ) Secondly, according to the Court, a tribunal of that type ‘cannot be regarded as a “court or tribunal of a Member State” within the meaning of Article 267 TFEU, and is not therefore entitled to make a reference to the Court for a preliminary ruling’. ( 92 ) Thirdly, the Court took into account the fact that an arbitration award made by such a tribunal is not subject systematically and in full to review by a court of a Member State, ( 93 ) and consequently it is not guaranteed ‘that the questions of EU law which the tribunal may have to address can be submitted to the Court by means of a reference for a preliminary ruling’. ( 94 )

101. In relation to that final point, the Court drew a distinction between commercial arbitration proceedings, which originate in the freely expressed wishes of the parties, and arbitration proceedings between an investor and a Member State resulting from a treaty concluded between Member States.

102. With regard to commercial arbitration proceedings, which are established in accordance with the express wishes of the parties, the Court held in its judgments of 1 June 1999, Eco Swiss ( 95 ) and of 26 October 2006, Mostaza Claro ( 96 ) that ‘the requirements of efficient arbitration proceedings justify the review of arbitration awards by the courts of the Member States being limited in scope, provided that the fundamental provisions of EU law can be examined in the course of that review and, if necessary, be the subject of a reference to the Court for a preliminary ruling’ ( 97 ).

103. However, according to the Court, such considerations do not apply to arbitration proceedings such as those referred to in Article 8 of the BIT, since they ‘derive from a treaty by which Member States agree to remove from the jurisdiction of their own courts, and hence from the system of judicial remedies which the second subparagraph of Article 19(1) TEU requires them to establish in the fields covered by EU law …, disputes which may concern the application or interpretation of EU law’. ( 98 ) In the Court’s view, this ‘could prevent those disputes from being resolved in a manner that ensures the full effectiveness of EU law, even though they might concern the interpretation or application of that law’. ( 99 )

104. The Court therefore found that the arbitration clause at issue in the BIT had an adverse effect on the autonomy of EU law. ( 100 ) By means of a bilateral investment agreement, two Member States had agreed to remove EU law from the jurisdiction of their own courts, and therefore from the judicial dialogue between those courts and tribunals and the Court, which was capable of having an adverse effect on the uniformity and effectiveness of EU law.

105. The approach adopted by the Court thus appears to me to have been primarily guided by the idea that the judicial system of the European Union, in so far as it is based on mutual trust and sincere cooperation between Member States, is inherently incompatible with the possibility of Member States establishing, in their bilateral relations, a parallel dispute settlement mechanism which may concern the interpretation and application of EU law. To that extent, Article 344 TFEU has been interpreted by the Court as precluding such a mechanism; the fact that the disputes in question are between investors and States is not a bar to such preclusion. Article 267 TFEU was supplementary, since the preliminary ruling procedure was necessarily affected by the operation of such a mechanism.

106. In my view, the approach adopted by the Court in its judgment in Achmea cannot be transposed to the examination of the ICS, because the premises which must guide the line of reasoning are different.

107. I have already stated that the relations between Parties such as, on the one hand, the European Union and its Member States and, on the other, Canada are not based on mutual trust, ( 101 ) and this is, moreover, the reason why those Parties intend to define, on a reciprocal basis, a standard of substantive and procedural protection in the agreement envisaged.

108. To that extent, that agreement cannot adversely affect either the principle of mutual trust between Member States ( 102 ) or the principle of sincere cooperation which Member States are required to observe.

109. Accordingly, since Section F of Chapter 8 of the CETA is contained in an agreement with a third State, which is intended to be concluded by the European Union and its Member States and governs relations between those Parties and not the mutual relations between Member States, the line of reasoning developed by the Court in its judgment in Achmea in the light of Articles 267 and 344 TFEU does not appear to me to be capable of applying to the ICS.

110. I would add, in this regard, that, contrary to the situation in the BIT at issue in the case which gave rise to the judgment in Achmea, which contained a clause on the applicable law which could suggest that the arbitration tribunal concerned had jurisdiction to hear and determine disputes relating to the interpretation and application of EU law, the CETA clearly states, as I will have occasion to expand upon later, that the applicable law before the CETA Tribunal consists exclusively of the relevant provisions of that agreement, as interpreted in accordance with international law. The domestic law of each Party, of which EU law forms part in the case of the Member States, ( 103 ) can be taken into account by that Tribunal only as a matter of fact, and the meaning ascribed to domestic law is not binding on the courts and tribunals or the authorities of the defendant Party. In addition, unlike in the case of bilateral investment treaties between Member States such as that at issue in the case which gave rise to the judgment in Achmea, EU law does not form part of the international law applicable between the Parties.

111. Furthermore, in order to distinguish clearly between the case of bilateral investment treaties between Member States and that of investment agreements such as the CETA, the Court took care in its judgment in Achmea to recall its settled case-law that ‘an international agreement providing for the establishment of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not in principle incompatible with EU law. The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected’. ( 104 )

112. In connection with that case-law and in order to highlight clearly the reasons why the dispute settlement mechanism provided for in the BIT at issue adversely affected the autonomy of the EU legal order, the Court observed that, ‘in the present case … apart from the fact that the disputes falling within the jurisdiction of the arbitral tribunal referred to in Article 8 of the BIT may relate to the interpretation both of that agreement and of EU law, the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by Member States. Article 8 of the BIT is such as to call into question not only the principle of mutual trust between the Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in Article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation’. ( 105 )

113. Those points having been made, even though the analytical framework cannot be identical to that applied by the Court with regard to a bilateral investment treaty between Member States, the fact remains that the establishment of a mechanism to settle disputes between investors and States by means of an agreement between, of the one part, the European Union and its Member States and, of the other part, a third State, must respect the autonomy of the EU legal order.

114. Viewed from that perspective and bearing in mind the factors which I have just set out above, consideration must now be given, as the Kingdom of Belgium asks me to do in its request for an opinion, to whether or not the ICS, as provided for in Section F of Chapter 8 of the CETA, may have an adverse effect on the autonomy of the EU legal order, in particular by affecting the exclusive jurisdiction of the Court to provide a definitive interpretation of EU law.

6. The guarantees provided for by the Parties in order to preserve the exclusive jurisdiction of the Court over the definitive interpretation of EU law

115. The role assigned to the Court and to the national courts and tribunals by Article 19(1) TEU, which consists in ensuring that EU law is observed within the EU legal order, is not, to my mind, affected by the establishment of a mechanism to settle disputes between investors and States such as that provided for in Section F of Chapter 8 of the CETA.

116. That agreement contains sufficient guarantees to safeguard, first, the role of the Court as the ultimate interpreter of EU law and, second, the cooperation mechanism between the national courts and tribunals and the Court, which takes the form of the preliminary ruling procedure.

117. The negotiators of the CETA thus deliberately ensured that the rules which it lays down interfere as little as possible with the rules of EU law.

118. In my view, Section F of Chapter 8 of the CETA therefore succeeds in guaranteeing a balance between, on the one hand, acceptance of the external review of the actions of the European Union and of its Member States in the light of the rules on investment protection contained in that chapter and, on the other, the preservation of the autonomy of EU law.

119. In that regard, it is essential to examine over which rules of law specifically the CETA Tribunal has jurisdiction and how it must construe the domestic law of the Parties, of which EU law forms part.

120. I observe that the CETA Tribunal enjoys a narrowly circumscribed jurisdiction. Pursuant to Article 8.18.1 of the CETA, that Tribunal has jurisdiction solely to rule on a breach of an obligation under Section C (‘Non-discriminatory treatment’) ( 106 ) or Section D (‘Investment protection’) of Chapter 8 of the CETA. That restriction of jurisdiction is underlined in Article 8.18.5 of that agreement, which provides that the CETA Tribunal ‘shall not decide claims that fall outside of the scope of this Article’. Furthermore, it is clear from the wording of Article 8.18.1 of the CETA that an investor can submit a claim concerning a measure adopted by the European Union or by a Member State only where he can prove that that measure has caused him damage. He cannot contest such a measure in the abstract.

121. In addition, with regard to the applicable law and its interpretation, Article 8.31.1 of the CETA provides that, ‘when rendering its decision, the Tribunal … shall apply this Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties [concluded in Vienna on 23 May 1969], and other rules and principles of international law applicable between the Parties’.

122. It is apparent from that provision that, when rendering its decision, the CETA Tribunal is confined to applying that agreement and other rules and principles of international law applicable between the Parties, and consequently it does not have jurisdiction to apply rules of EU law. ( 107 ) Thus, the rules of law applicable to the disputes which the CETA Tribunal is called on to settle do not include the domestic law of the Parties.

123. Furthermore, pursuant to Article 8.31.2 of the CETA, ‘the Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of a Party’. This means, in other words, that the Tribunal is in no way authorised to rule on the legality of an act adopted by a Member State or by the European Union in the light, as the case may be, of the national law of that State or indeed of EU law. In view of that exclusion of jurisdiction, the view may be taken that the Tribunal does not encroach upon the jurisdiction of the national courts or tribunals or of the European Union judicature vis-à-vis the review of the legality of legal acts forming part of the legal orders of the Member States and of the EU legal order. ( 108 )

124. Thus, although it is true that the Court has made clear that the judicial system of the European Union is a ‘complete set of legal remedies and procedures designed to ensure review of the legality of acts of the institutions’, ( 109 ) the dispute settlement mechanism established by the CETA does not adversely affect that system since it is not intended to review the legality of acts of the European Union. That mechanism is intended solely to review the compatibility of the acts adopted by the Parties with the relevant provisions of the CETA, with a view to granting compensation to the investors who suffer loss where the acts are found to be incompatible. The monopoly of the role of reviewing the legality of acts of the European Union, conferred on the Courts of the European Union by the Treaties, is therefore not called into question.

125. When exercising its jurisdiction to rule on the conformity with the CETA of a measure adopted by one of the Parties, the CETA Tribunal does not have the power, as is apparent from Article 8.39.1 of the CETA, to order the annulment of a measure which it deems contrary to the provisions of Chapter 8 of the CETA or to require that it be brought into line with those provisions. ( 110 ) Under that provision, the CETA Tribunal may only award monetary damages or, with the agreement of the respondent, restitution of property of which an investor has been dispossessed. ( 111 ) The ICS thus stems from litigation in the field of investment arbitration, which primarily involves proceedings for compensation.

126. As the French Government rightly observes, it is not for the CETA Tribunal to settle disputes between two parties each of whom have a different position on the validity or interpretation of an act of EU law nor, a fortiori, to order the annulment of such an act or recommend that it be brought into line. On the contrary, the CETA Tribunal will have jurisdiction solely to verify whether a particular application of EU law is consistent with the CETA, in the same way that the DSB examines only whether a particular application of EU law is compatible with the WTO agreements.

127. It must thus be observed, on the basis of safeguards which enable infringement of the principle of the autonomy of the EU legal order to be ruled out, that the effects that the awards made by the CETA Tribunal may produce are limited. I would add, in this regard, that it follows from Article 8.41.1 of the CETA that those awards must be binding ‘between the disputing parties and in respect of that particular case’.

128. In the implementation of that jurisdiction thus defined, the margin of interpretation enjoyed by the CETA Tribunal is also circumscribed.

129. With regard to the domestic law of each Party, Article 8.31.2 of the CETA states that, ‘for greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact’. That provision illustrates the approach adopted by the Parties, in accordance with which the CETA Tribunal is to interpret as little as possible the domestic law of each of the Parties and is to take account of it as it stands.

130. On this point, it must be observed that it is, in my view, absolutely essential that the CETA Tribunal be authorised to ‘consider’ the domestic law of each Party. It is consistent with the logic of the new free trade agreements negotiated by the European Union and, more specifically, with their provisions on international investments, to strike a new balance between the private interests of investors and the public interests pursued by the Parties. This means that the Parties can rely on their domestic rules before the Tribunal where those rules provide for the protection of a public interest, with a view to justifying the measure or conduct complained of. If the Tribunal were unable to consider rules contained in the Parties’ domestic law, it would be impossible for it to take account of legitimate objectives in the public interest.

131. With regard to the balance thus expressed in the CETA, paragraph 6(a) of the Joint Interpretative Instrument states that that agreement ‘includes modern rules on investment that preserve the right of governments to regulate in the public interest including when such regulations affect a foreign investment, while ensuring a high level of protection for investments and providing for fair and transparent dispute resolution’. Paragraph 6(b) of the Joint Interpretative Instrument adds that ‘[the] CETA clarifies that governments may change their laws, regardless of whether this may negatively affect an investment or investor’s expectations of profits’. ( 112 )

132. Giving concrete expression to that idea, Article 8.9 of the CETA, entitled ‘Investment and regulatory measures’, provides, in paragraph 1 thereof, that, ‘for the purposes of this Chapter, the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection or the promotion and protection of cultural diversity’. Article 8.9.2 of that agreement states that, ‘for greater certainty, the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor’s expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section’.

133. Those provisions illustrate the balance struck between the economic interests of investors and the sovereign right of States to regulate in the public interest. The economic imperative of promoting and protecting investments is thus weighed against the pursuit of objectives in the public interest.

134. However, consideration of the Parties’ domestic law must not entail the CETA Tribunal amending that law. It must take account of that law as it stands. This is what is meant by the rule that, where the Tribunal considers the domestic law of a Party, it may do so only ‘as a matter of fact’. It must be observed, in that regard, that the international courts which are required to examine whether a State has complied with the obligations under an international treaty and, to that end, to examine the law of that State, traditionally regard the meaning to be given to that national law as being a matter of fact. ( 113 )

135. Accordingly, it is as matters of fact that the CETA Tribunal may consider the rules contained in the Parties’ domestic law in order to rule on the consistency with that agreement of the conduct or measure forming the subject matter of the dispute. ( 114 )

136. In addition, a further limitation is provided for in Article 8.31.2 of the agreement envisaged, in order to prevent the CETA Tribunal from exercising creative licence in relation to domestic law. When considering the domestic law of a Party as question of fact, the Tribunal is required to follow ‘the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to the domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party’. The CETA Tribunal cannot therefore issue binding interpretations of EU law.

137. Thus, although it is indeed conceivable that, in order to conduct its review, the Tribunal may be called upon to undertake some interpretation of EU law, for example where it is required to define the scope of the conduct complained of, the CETA Tribunal is, however, required, pursuant to Article 8.31.2 of the CETA, to follow the interpretation that the Court has given, as the case may be, of EU law, without, in any event, the European Union being bound by the meaning that the CETA Tribunal might give to EU law. Accordingly, any interpretation of domestic law by the CETA Tribunal would not have the effect of binding the authorities or the courts of the Party complained against.

138. It follows from the foregoing that the CETA Tribunal is bound by the interpretation of EU law given by the Court, which Article 8.31.2 of the CETA requires it to follow, whereas neither the Court, nor the institutions of the European Union, nor the national courts or authorities are bound by the interpretation of EU law made by the Tribunal.

139. Article 8.31.2 of the CETA therefore guarantees that the CETA Tribunal can interpret EU law only if there is no guidance in that regard within the EU legal order and if, when such an interpretation is made by that Tribunal, it is made solely for the purposes of ruling on the dispute brought before it, without that interpretation being binding on the authorities or the courts of the European Union.

140. Thus, Article 8.31.2 of the CETA contains sufficient safeguards to prevent the CETA Tribunal from being able to impose an interpretation of EU law within the EU legal order. To that extent, the essential functions of the Court are not affected. In particular, the dispute settlement mechanism established by Section F of Chapter 8 of the CETA does not affect the Court’s role as the definitive interpreter of EU law, with binding effect.

141. That provision shows that account is taken of the case-law of the Court, under which the bodies given decision-making powers within the context of an agreement concluded by the European Union must be incapable of ‘binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law’. ( 115 )

142. It is true that, in Opinion 2/13, the Court observed that ‘the interpretation of a provision of EU law, including of secondary law, requires, in principle, a decision of the Court of Justice where that provision is open to more than one plausible interpretation’. ( 116 ) According to the Court, ‘if [it] were not allowed to provide the definitive interpretation of secondary law, and if the [European Court of Human Rights], in considering whether that law is consistent with the ECHR, had itself to provide a particular interpretation from among the plausible options, there would most certainly be a breach of the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law’. ( 117 ) Nevertheless, that principle is not breached where, provided that it is possible and effectively implemented by the CETA Tribunal, its interpretation of EU law would not have binding effect on the authorities and the courts of the European Union.

143. This is not called into question by the finding that, as I have previously stated, pursuant to Article 8.41.1 of the CETA, an award by the CETA Tribunal will be binding between the disputing parties in respect of that particular case. If the CETA Tribunal were itself required to provide an interpretation of EU law, in a situation in which there is no interpretation of which it should have taken account, the Court would retain the jurisdiction to give a definitive interpretation of EU law. The award by the CETA Tribunal will be binding only between the disputing parties in respect of that case. Accordingly, if an interpretation of EU law by the CETA Tribunal appears to the Court to be incorrect, the Court may, without triggering a breach by the European Union of its international obligations, dismiss such an interpretation and adopt the interpretation which appears to it to be the most appropriate.

144. In addition, the margin of interpretation enjoyed by the Tribunal is limited by the ability of the Parties to ‘issue binding notes of interpretation’ intended to ‘avoid and correct any misinterpretation of CETA by Tribunals’. ( 118 )

145. Thus, Article 8.31.3 of the CETA provides that, ‘where serious concerns arise as regards matters of interpretation that may affect investment, the Committee on Services and Investment may, pursuant to Article 8.44.3(a), recommend to the CETA Joint Committee the adoption of interpretations of this Agreement. An interpretation adopted by the CETA Joint Committee shall be binding on the Tribunal established under this Section. The CETA Joint Committee may decide that an interpretation shall have binding effect from a specific date’. ( 119 )

146. It must also be pointed out that, under Article 26.3.3 of the CETA, ‘the CETA Joint Committee shall make its decisions and recommendations by mutual consent’. By analogy with the Court’s finding in Opinion 1/00, such a decision-making method is a guarantee, for the European Union, that it will not, in its relations with Member States or nationals of Member States, be bound by an interpretation which is at variance with the case-law of the Court. ( 120 ) I also note that the wording of the CETA does not preclude the position adopted by the European Union within the Joint Committee from being referred to the Court, where appropriate, by means of the remedies provided for by the FEU Treaty. ( 121 )

147. In addition, it is important to note that, pursuant to Article 8.28.1 of the CETA, ‘an Appellate Tribunal is hereby established to review awards rendered under this Section’. Under Article 8.28.7 of the CETA, it falls to the CETA Joint Committee to adopt ‘promptly a decision setting out the … administrative and organisational matters regarding the functioning of the Appellate Tribunal’ in relation to the points listed in that same provision.

148. The very existence of the Appellate Tribunal is an additional guarantee that, when a decision is taken within the context of the dispute settlement mechanism provided for in Section F of Chapter 8 of the CETA, EU law — taken into consideration as a matter of fact — will not be misinterpreted. Pursuant to Article 8.28.2(b) of the CETA, the Appellate Tribunal may also modify or reverse an award of the CETA Tribunal on the basis of ‘manifest errors in the appreciation of the facts, including the appreciation of relevant domestic law’. This means that, with regard to the meaning to be given to EU law, any error on the part of the CETA Tribunal may still be corrected as part of the review of its awards by the Appellate Tribunal.

149. In accordance with Article 8.28.2(b) of the CETA, the applicant at the appeal stage who contests the Tribunal’s appreciation of the relevant domestic law must therefore show, in order to satisfy the requirement of demonstrating a manifest error, that the Tribunal was influenced by considerations which are clearly at odds with the content of the provisions of domestic law at issue or indeed gave that law a scope which it clearly does not have.

150. The restriction of the review, at the appeal stage, to manifest errors in the appreciation of the facts is consistent with the idea that the Tribunal must interpret the Parties’ domestic law as little as possible. It is therefore necessary, both at first instance and at the appeal stage, to ensure that the point of contention does not concern the meaning of that domestic law.

151. It must be observed that that review at the appeal stage, as provided for in Article 8.28.2(b) of the CETA, corresponds to the jurisdiction enjoyed by the Court on appeal. In that regard, I note that, in accordance with the settled case-law of the Court, ‘it has jurisdiction, on appeal, only to verify whether the national law was distorted, which must be obvious from the documents on its file’. ( 122 )

152. The review by the Appellate Tribunal, which is limited to manifest errors, should, however, be conducted only in the event — which will arguably be relatively rare —that there is nothing in the EU legal order to clarify the meaning to be given to a provision of EU law.

153. However, if it is shown that the CETA Tribunal has departed from an existing interpretation of EU law, its appreciation could, in my opinion, be declared unlawful simply by demonstrating that an error in law has been committed, in accordance with Article 8.28.2(a) of the CETA, since the Tribunal could then be deemed to have infringed Article 8.31.2 of the CETA, which limits its jurisdiction.

154. As I have previously stated, it follows from Article 8.31.2 of the CETA that the Tribunal is required, when considering the domestic law of a Party as a matter of fact, to follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party. Accordingly, in my view, infringement of Article 8.31.2 of the CETA would constitute an error in the application of applicable law within the meaning of Article 8.28.2(a) of that agreement; such an infringement could be found to exist if the Tribunal were to formulate its own interpretation of EU law, without considering the interpretation of that law accepted by the institutions or the courts of the European Union, even though Article 8.31.2 of the CETA requires the Tribunal to rely on the prevailing interpretation of EU law. In other words, the infringement of that obligation would constitute an error in law which would not require a finding that that error is manifest, within the meaning of Article 8.28.2(b) of the CETA, in order to be established.

155. It follows from the foregoing that the CETA Tribunal has jurisdiction to interpret and implement the CETA and that, in view of that precisely defined jurisdiction, it cannot undermine the objective of the uniform interpretation of EU law or the role of reviewing the legality of the acts of the institutions, for which the European Union judicature is responsible.

156. In view of the guarantees surrounding the establishment of the dispute settlement mechanism provided for in Section F of Chapter 8 of the CETA, I take the view that the European Union is capable of submitting itself to an external review of compliance with the investment protection standards contained in that agreement, without thus adversely affecting the autonomy of the EU legal order.

157. In addition, as several interveners in these proceedings have observed, it must be noted that the CETA cannot be compared with the draft agreement relating to the creation of the European Economic Area (EEA), in the version thereof at issue in Opinion 1/91 (EEA Agreement — I) of 14 December 1991, ( 123 ) or with the proposed agreement on the establishment of a European Common Aviation Area (ECAA Agreement) at issue in Opinion 1/00. ( 124 ) Sections C and D of Chapter 8 of the CETA have neither the object nor the effect of extending the acquis of the European Union to Canada by restating provisions of EU law. Although there are, indeed, substantive overlaps with the investment protection provided for in internal EU law, the rules contained in Sections C and D of Chapter 8 of the CETA cannot be regarded as ‘identical’. Those rules reflect the customary standards in international investment protection, whilst also clarifying and strengthening them. Furthermore, nor does the CETA include the obligation to guarantee a uniform interpretation of the protection standards which it contains and of those contained in the Parties’ domestic law. ( 125 ) From that perspective, there is no risk of the interpretation of Sections C and D of Chapter 8 of the CETA by the Tribunal having repercussions on the interpretation of internal EU law, which the Court found to be incompatible with the principle of the autonomy of the EU legal order in Opinion 1/91. ( 126 )

158. In any event, the important point is that, in the light of the guarantees which I have listed in my earlier comments, even in the case of rules of protection which are essentially identical, the mechanism established by the CETA does not have the effect of binding the European Union and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law which could find equivalent expression in that agreement, with each category of rules being distinct as to form and capable of continuing to be interpreted autonomously. ( 127 )

159. The provisions of the CETA on the CETA Tribunal must also be distinguished from those of the draft agreement on the accession of the European Union to the ECHR, which formed the subject matter of Opinion 2/13. In that opinion, the Court drew attention to several reasons pointing to an adverse effect on the autonomy of EU law, including inter alia the fact that the agreement envisaged could affect the reciprocal relations maintained by the European Union and the Member States, as well as the division of powers between the European Union and its Member States.

160. However, the CETA Tribunal has no jurisdiction to rule on the reciprocal relations between the European Union and its Member States, between the Member States themselves or between the investors of one Member State and the other Member States. The CETA Tribunal differs from the courts which were the subject of Opinions 1/09 and 2/13 because if the agreement envisaged in each of those opinions had been concluded by the European Union both the European and Community Patents Court and the European Court of Human Rights would have had jurisdiction to rule on disputes internal to the European Union. That is not the case with the CETA Tribunal, which can hear and determine only disputes between the investors of one Party and the other Party.

161. Furthermore, the CETA Tribunal is not called on to rule on the division of powers between the European Union and its Member States. Article 8.21 of the CETA has laid down automatic procedures for determining the respondent in the context of proceedings initiated by a Canadian investor, without prejudice to Regulation (EU) No 912/2014 of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party. ( 128 ) Thus, Article 8.21.1 of the CETA provides, in the event of an alleged breach of that agreement by the European Union or by a Member State, that an investor who intends to submit a claim pursuant to Article 8.23 of the agreement must deliver ‘to the European Union a notice requesting a determination of the respondent’. The European Union then determines whether it or one of its Member States will be the respondent and informs the investor accordingly. ( 129 ) In the event that the investor has not been informed of the determination within 50 days of delivering its notice requesting such determination, and if the measures identified in the notice are exclusively measures of a Member State, that Member State is to be the respondent. If the measures identified in the notice include measures of the European Union, the European Union is to be the respondent. ( 130 ) The CETA Tribunal is bound by that determination made pursuant to Article 8.21.3 or 8.21.4 of the CETA. ( 131 )

162. The rules for determining whether the European Union or the Member State concerned must be the respondent are contained in Regulation No 912/2014. Decisions adopted by the Commission are implementing acts. They are therefore acts which may be subject to a review of their legality before the European Union judicature. As the Council rightly observes, the Court therefore remains the ultimate judge as regards the issue of who should be the respondent.

163. In the light of those factors, the present case differs from Opinion 2/13, in which the Court found that the arrangements for the operation of the co-respondent mechanism laid down by the agreement envisaged did not ensure that the specific characteristics of the EU and EU law were preserved. Those arrangements undermined the exclusive jurisdiction of the Court to rule on the division of powers between the European Union and its Member States. ( 132 )

164. Accordingly, since the CETA Tribunal is not authorised, by virtue of the provisions of Article 8.21 of the CETA, to rule on the division of powers between the European Union and its Member States, the CETA cannot be regarded as adversely affecting the autonomy of the EU legal order in this regard.

7. The ICS does not affect the role of national courts and tribunals of ensuring the effective application of EU law

165. Section F of Chapter 8 of the CETA establishes a mechanism which could be classified as ‘quasi-judicial’, whilst retaining in certain respects the imprint of the rules applicable in investment arbitration, and which seeks, in essence, to resolve disputes concerning the interpretation or the application of the actual provisions of the international agreement concerned. In addition, since it is an alternative method of settling disputes on the protection of investments, relating to the application of the CETA, that mechanism does not affect the powers of the courts or tribunals of the Member States in relation to the interpretation and application of EU law, nor the power, or indeed the obligation, of those courts and tribunals to request a preliminary ruling from the Court and the power of the Court to reply to the questions referred by those courts and tribunals. ( 133 )

166. Although, like the European and Community Patents Court which formed the subject matter of Opinion 1/09, the Tribunal stands outside the institutional and judicial framework of the European Union, exclusive jurisdiction to rule on actions brought by foreign investors in the field of investment protection or to interpret and apply EU law in that field is not conferred on the Tribunal, contrary to the position of the European and Community Patents Court in relation to a significant number of actions brought by individuals in the field of the Community patent. ( 134 )

167. As the Commission rightly states in its observations, the role of the CETA Tribunal is not to apply internal EU law, rather merely the provisions of the CETA. That agreement offers additional protection under international law and provides for a specific mechanism which allows the investors of the other Party to rely on that protection. That being said, it does not, however, restrict the substantive rights enjoyed by foreign investors under internal EU law. Nor does it have the effect of limiting the jurisdiction of the Court or of the courts and tribunals of the Member States to hear and determine actions brought with a view to ensuring the observance of such rights as are afforded by internal EU law.

168. Accordingly, the establishment of the ICS does not prevent foreign investors from seeking to protect their investments by bringing proceedings before the courts and tribunals of the Parties with a view to the domestic law of those Parties being applied. ( 135 ) I note, in this regard, that, since the CETA does not have direct effect, foreign investors will be unable in those circumstances to rely directly on a breach of that agreement before the courts and tribunals of the Parties, but can rather rely merely on the Parties’ domestic law, provided of course that it contains adequate standards of protection. In addition to the fact that the two types of action are therefore based on different legal rules of reference, the subject matter of those actions is not necessarily the same. Unlike the case of a claim submitted to the CETA Tribunal, referral of the matter to the domestic courts and tribunals of the Parties may go beyond just an action seeking compensation and seek the annulment of a measure forming part of the domestic law of those Parties. These are therefore two complementary legal remedies and not substitutes for one another.

169. The Parties have laid down rules which circumscribe the choice available to foreign investors.

170. Under Article 8.22 of the CETA, entitled ‘Procedural and other requirements for the submission of a claim to the Tribunal’: ‘1. An investor may only submit a claim pursuant to Article 8.23 if the investor: … (f) withdraws or discontinues any existing proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim; and (g) waives its right to initiate any claim or proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim.’

171. Those provisions show that solely an alternative jurisdiction is conferred on the CETA Tribunal. Thus, as is made clear in paragraph 6(a) of the Joint Interpretative Instrument, ‘CETA does not privilege recourse to the [ICS] set up by the agreement. Investors may choose instead to pursue available recourse in domestic courts’. Furthermore, the inability to bring an action before the courts or tribunals of the Parties at the same time as, or indeed after, the referral of the matter to the CETA Tribunal could have the effect of encouraging investors to bring proceedings first before those courts and tribunals. Even though it is not laid down as a prerequisite for referral of the matter to the CETA Tribunal, exhaustion of the domestic remedies is therefore encouraged by those provisions.

172. In the light of those factors, the view must be taken that, even though, given that the CETA does not have direct effect, it is not the role of the courts and tribunals of the Member States to apply that agreement, those courts and tribunals are not, however, deprived of their status as ‘general law’ courts within the EU legal order, including their role in any making of references for a preliminary ruling. Furthermore, the Court is not deprived of its power to reply, by preliminary ruling, to questions referred by those courts and tribunals. There cannot therefore be held to be any alteration of the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States, powers which are indispensable to the preservation of the very nature of EU law. ( 136 )

8. Consistency with the objectives of the European Union’s external action

173. It is my view that examination of the compatibility of Section F of Chapter 8 of the CETA with the principle of the autonomy of EU law must be carried out taking due account of the need to preserve the European Union’s capacity to contribute to achieving the principles and the objectives of its external action.

174. As the Slovak Government rightly pointed out at the hearing, the Court should interpret the principle of the autonomy of EU law not only in such a way as to maintain the specific characteristics of EU law but also to ensure the European Union’s involvement in the development of international law and of a rules-based international legal order.

175. In my opinion, the provisions contained in Chapter 8 of the CETA enable a balance to be struck between preserving the specific constitutional structure of the European Union and developing its external action.

176. Under Article 3(5) TEU, ‘in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to … the sustainable development of the Earth, … free and fair trade, … as well as to the strict observance and the development of international law …’. That last objective logically means that the European Union should favour initiatives and control mechanisms which enhance the effectiveness of the international treaties to which it is party. ( 137 )

177. In accordance with Article 21(2) TEU, the European Union’s action on the international stage must seek to work for a ‘high degree of cooperation in all fields of international relations’, in particular by consolidating and supporting ‘the rule of law … and the principles of international law’, ( 138 ) via ‘the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade’, ( 139 ) by helping to ‘develop international measures … in order to ensure sustainable development’ ( 140 ) and by the promotion of ‘an international system based on stronger multilateral cooperation and good global governance’. ( 141 ) Under Article 207(1) TFEU, ‘the common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action’.

178. In my view, Chapter 8 of the CETA is entirely consistent with those objectives by combining rules on the protection of investments, which contribute to the legal certainty of investors and to the development of trade between the European Union and Canada, ( 142 ) and a specific dispute settlement mechanism together with the express statement of the Parties’ right to adopt the legislation necessary to achieve legitimate objectives in the public interest, for example in the areas of public health, safety, the environment and social protection.

9. The establishment of a mechanism for the prior involvement of the Court and the possibility of a full review of the awards by the courts and tribunals of the Member States are not necessary

179. I would observe that the purpose of a dispute settlement mechanism such as that provided for in Section F of Chapter 8 of the CETA is to guarantee the neutrality and the autonomy of the resolution of investor-State disputes vis-à-vis the judicial systems of the Parties. From that perspective, it is understandable that those Parties have not provided either a mechanism for the prior involvement of the Court or that the awards issued by the Tribunal should systematically be subject to full review by the courts and tribunals of the Parties. Providing for such a link to the judicial system of the Parties would have been at odds with the int