Dr. David Fennelly:

I thank Deputy Richmond for the question. On the reference to arguments around Articles 15 and 34 of the Constitution, that is a reference to the reports on the challenge that is pending before the High Court. There has not been any real academic engagement with the constitutionality of CETA. In the media reports in that regard it is fairly set out that there is an argument around this issue. To succeed before the courts one needs a fairly strong argument, particularly in the light of the Pringle judgment.

Touching upon something that arose earlier, I would make the point that in opinion 1/17 the ECJ took a formalistic, legalistic reading of the CETA agreement. It is fair to say that when this matter comes before the domestic courts so, too, the High Court or Supreme Court, on appeal, will be looking at it through that legal sense and in a fairly formalistic way. The courts have emphasised in their case law in this area that they do not look to the merits of particular international agreements - the pros and cons on a policy or political basis - because that is not a matter for the courts. Rather, it is a matter for members in the political organs.

On the potential implications if there is not ratification, one distinct possibility is collapse of the entire agreement, and in formal terms, because of the particular clause on entry into force of the CETA agreement, that may very well be the case but, of course, one can never discount the ingenuity of member states and the Union in dealing with these issues. One possibility, particularly if problems present around the investor court system, is the potential for severability of that from the rest of the regime, but neither the EU institutions nor the Canadians have broached that yet given the fact that this is very live before the various member states.