Brendan Howlin (Wexford, Labour) | Oireachtas source

I thank Mr. Schlegelmilch for his most comprehensive presentation and for forwarding an advance copy of it for members to read.

The general disposition of the great majority of the members of this committee is very pro-trade. We absolutely recognise the importance of trade to Ireland. We are an open trading economy. Mr. Schlegelmilch correctly stated that the issue of focus of contention has been the inclusion of the ICS. We are trying to get behind the rationale of it and to see if it is an absolutely necessary part of it.

Mr. Schlegelmilch has addressed many of the issues that have arisen. I wish to put them again to him. First, one of the points that has come up repeatedly in the submissions that we have received, both from the public and lobby organisations, is the chill factor. Even if there is no legal impediment, the mere fact that the State can be sued has in the past in other countries, and there are cases to be instanced, had a chilling effect on progressive policy formation. I ask Mr. Schlegelmilch to address that.

My second point relates to the clear assertion made in his presentation that the European Court of Justice, ECJ, judgment states that there is no risk of impacting on a state's ability to regulate. That is what he said. We have heard other presentations. I will quote one line from a submission made by Dr. Suttle, an assistant law professor in one of Ireland's universities. In his written submission to the committee, he states: "There is little in the ECJ’s opinion on CETA to allay concerns about the constraints this regime will impose on states’ regulatory autonomy." One would imagine that a court's decision is clear. It either demonstrably states that it does not impact on the freedom of a state to regulate or there is some ambiguity about it. I would like Mr. Schleglemilch to be very clear in underpinning his assertion that no such risk exists.

My third and final point relates to another matter that has been presented to us, namely, that an ICS decision-making process must take account of the profit expectation of companies in making its determinations. That might have an adverse impact on public policy decisions of Government if such a public policy decision impacted on the legitimate expectations of profit of companies operating in the EU.