David Martin MEP

Labour Member of the European Parliament and one of the six MEPs representing Scotland in Brussels and Strasbourg

November vote regarding European Court of Justice opinion on the ICS provisions of CETA

My decision to vote against sending the Investment Court System in CETA to the European Court of Justice has been questioned by some groups. The motion failed to gain support across the parliament and was rejected by 419 votes to 258 votes, with 22 abstentions. Below is an explanation of the motion and the reasoning behind my vote.


On Wednesday 23 November 2016 a draft resolution came before the plenary session of the European Parliament in Strasbourg. It requested that the parliament seek a legal opinion from the European Court of Justice on the compatibility with EU law of the provisions of CETA related to investment dispute settlement – the so called investment court system (ICS).

According to Rule 108 (6) of the parliament’s procedures if this resolution had been approved, the vote on the CETA agreement would have been put on hold until the Court delivered its opinion, which takes around two years.

Why I voted against the resolution

  • I agree that it is in everybody’s interest that we have legal certainty over aspects of the CETA agreement. Our Socialists and Democrats (S&D) group, to which Labour MEPs belong, took the initiative and requested an opinion in March 2016 from the European Parliament’s legal service on the compatibility of the whole investment chapter with the EU treaties. This legal analysis concluded that the investment chapter is indeed compatible with existing EU law. The EP legal service is an impartial and non-partisan service open to all MEPs from all parties. We usually trust their judgement, and this should also be the case even when people disagree with their verdict. You can read their full analysis here.


  • There is already a legal statement of Belgium attached to the CETA text that commits Belgium to ask the European Court of Justice for an opinion on the compatibility of ICS with EU law. Belgium has apparently already started drafting this request and the European Parliament could contribute to this process. In the meantime ICS will not be applied.


  • The EU Council - made up of EU government leaders - decided to exclude parts of the investment protection provisions and the whole of ICS from the ‘provisional application’ of CETA. The Canadian government, the European Commission and the Council have committed to continue the technical work on ICS so that it conforms to our social-democratic principles as outlined in our position paper from March 2015. We have therefore an interest not to stop the process now with a referral to the European Court of Justice but let it continue and allow the Belgian government to seek the opinion of the Court before their ratification. You can read more on provisional application and what it means on my blog here.


Although I acknowledge some colleagues’ desire for greater legal certainty, the majority of the text does not pose any legal issues. Some MEPs from other groups were using this resolution as a political tool to try and frustrate CETA for an extra two years.

The social-democrats in the European Parliament have achieved so much in the seven years we have been working on CETA when it comes to respect for core labour standards, the protection of public services, the upholding of consumer standards, and not least the removal of the system of private arbitration (ISDS).



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