The Second Senate of the Federal Constitutional Court rejected as unfounded several constitutional complaints and an application in Organstreit proceedings (dispute between constitutional organs) directed against the provisional application of the free trade agreement between the European Union and its Member States of the one part and Canada of the other part (Comprehensive Economic and Trade Agreement - CETA). To the extent that the proceedings were also directed against the signing and conclusion of CETA, the constitutional complaints and the Organstreit application were dismissed as inadmissible.
It is not ascertainable that Council Decision (EU) 2017/38 of 28 October 2016 on the provisional application of CETA amounts to an ultra vires act, nor that it encroaches upon the basic tenets of the principle of democracy within the meaning of Art. 20(1) and (2) of the Basic Law (Grundgesetz - GG). To the extent that it is disputed whether the European Union (EU) has the requisite competence for certain matters governed by CETA, the relevant provisions are exempt from provisional application, including the provisions that could potentially allow a further transfer of sovereign powers to the system of tribunals and committees established under CETA. While it is doubtful whether a further transfer of sovereign powers would ultimately be covered by Art. 23(1) GG, as the constitutional basis authorising European integration, the exceptions to provisional application and the declarations entered into the Council minutes regarding the CETA Joint Committee effectively guard against this risk materialising. Moreover, it may appear doubtful whether the level of democratic legitimation and oversight required under Art. 20(1) and (2) GG is met regarding decisions of the CETA Joint Committee. However, to the extent that CETA is rendered provisionally applicable, encroachments upon the Basic Law’s constitutional identity (Art. 79(3) GG) can be ruled out.
The opinion of 16 May 2017 on the EU-Singapore Free Trade Agreement (EUSFTA), delivered by the Court of Justice of the European Union (CJEU) after the present proceedings were initiated, does not merit a different conclusion. As regards the competences of the Member States, it is true that the CJEU deviates in several respects from the findings in the judgment of the Second Senate of 13 October 2016 on applications for preliminary injunction directed against CETA. However, this has no bearing on the appraisal of the Council Decision at issue here. The constitutional review conducted in the present proceedings must be based on the substantive meaning of the Council Decision of 28 October 2016 as reasonably interpreted at the time that decision was adopted.