CYIL vol. 10 (2019)

MIRIAMA KISELYOVA CYIL 10 ȍ2019Ȏ framework 64 . Regarding the first requirement (no interpretation beyond CETA), the Court made distinctions between CETA tribunal and the tribunals under Patent Court case 65 and Achmea case 66 and emphasized that in this case, the principle of mutual trust between Member States Courts does not apply. 67 The Court relied on the definition of applicable excluding the EU law and national law (framing them as a question of fact), determination of the respondent by the Union, narrow powers of the Appellate tribunal when confirming that EU law will not be interpreted/applied beyond CETA itself. Due to narrow scope of the articles above, no preliminary questions to the CJ EU or scrutiny by national court is necessary. 68 Regarding the second requirement (No effect on the operation of the EU institutions in accordance with the EU constitutional framework) the Court relied here mainly on CETA articles limiting awards to pecuniary damages or restitution of property, general exceptions based on GATS Article 14,the right to regulate, annex on indirect expropriation, limited definition of fair and equitable treatment, as safeguards against interference with operation of the EU institutions in accordance with the EU constitutional framework. 69 Based on the above stated the Court “ concluded that Section F of Chapter Eight of the CETA does not adversely affect the autonomy of the EU legal order. 70 ” General principle of equal treatment and the requirement of effectiveness Belgium pointed to the potential discrimination of domestic investors as they, unlike Canadian investors in the EU, do not enjoy access to ICS. 71 Additionally, Belgium expressed concerns about the potential breach of competition law. 72 The Court observed that e quality before the law under Article 20 of the Charter 73 enshrines the principle of equal treatment, which requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified 74 The comparativeness of situations “ must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account ” 75 Here, the Court underlined that Canadian investors in the EU, being foreign investors, are not in comparable situations as the EU investors in the EU, 76 hence no discrimination takes place. Regarding the hypothetical situation of competition fine being in breach of non-discriminatory treatment and investment protection (Sections C and D of 64 Opinion 1/17 Para 118. 65 Opinion 1/09 (Agreement on the creation of a unified patent litigation system) of 8March 2011 (EU:C:2011:123) paragraph 89). 66 Judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, paragraphs 57 and 58. 67 Opinion 1/17 para 129 . 68 Opinion 1/17Para 134, 135. 69 Opinion 1/17 para 146, 152, 154, 156, 157. 70 Opinion 1/17 para 161. 71 Opinion 1/17 Para 51-53. 72 Opinion 1/17 Para 54, 55. 73 Charter of Fundamental Rights of the European Union. 74 (judgments of 17 October 2013, Schaible, C-101/12, EU:C:2013:661, paragraph 76, and of 12 July 2018, Spika and Others, C-540/16, EU:C:2018:565, paragraph 35), in Opinion 1/17, para 176. 75 (judgments of 16 December 2008, Arcelor Atlantique and Lorraine and Others, C-127/07, EU:C:2008:728, paragraph 26; of 7 March 2017, RPO, C-390/15, EU:C:2017:174, paragraph 42; and of 22 January 2019, Cresco Investigation, C-193/17, EU:C:2019:43, paragraph 42). in Opinion 1/17, para 176. 76 Opinion 1/17 para 180.

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