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The CETA Investment Court and EU External Autonomy: Did Opinion 1/17 Broaden the EU´s Room for Manoeuvre in External Relations?

  • The present contribution analyses the Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, did not raise any objections. In first reactions, this opinion was welcomed as an extension of the EU's room for manoeuvre in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent, which the Court made clear in the text of the opinion, and the restrictions are likely to confine the leeway for EU external contractual relations. Due to their fundamental importance, these restrictions, derived by the CJEU from the autonomy of the Union legal order form the core subject of this contribution. In what follows, the new emphasis in the CETA opinion on the external autonomy of Union law will be analyzed first (II). Subsequently, the considerations of the CJEU on the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA opinion is in contrast to its approach in earlier decisions as it misjudges problems and therefore only superficially leads to a clear delimitation of competences (III.). An exploration of the last part of the CJEU's autonomy analysis will follow, in which the CJEU tries to respond to the criticism of regulatory chill (IV). Here, by referring to the unhindered operation of the EU institutions in accordance with their constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned, which takes back the previous comprehensive affirmation of jurisdiction of the CETA Tribunal in one point and which raises many questions about its concrete significance, consequence, and scope of application.

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Author:Wolfgang Weiss
Parent Title (English):Hungarian Yearbook of International and European Law
Publisher:Eleven International Publishing
Place of publication:Den Haag
Editor:Marcel Szabó, Laura Gyeney, Petra Lea Láncos
Document Type:Part of a Book
Year of Completion:2021
Publishing Institution:Deutsche Universität für Verwaltungswissenschaften
Release Date:2021/01/25
Reviewed Document?:Ja
First Page:15
Last Page:39
Documents ordered by chairs:Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß)
Access Rights:Frei zugänglich
Licence (German):License LogoUrheberrechtlich geschützt