Szpunar Maciej, Between the Autonomy of EU Law and the Principle of Mutual Trust: A Framework for the Conclusion by the Union of Investment Agreements Following Opinion 1/17

The Court has, on numerous occasions, affirmed the competence of the European Union to conclude international agreements involving the conferral of competence on judicial bodies outside the European Union. It follows from the case law of the Court since Opinion 1/91 that ‘the competence of the [European Union] in matters of international relations and its capacity to conclude international agreements necessarily include the power to submit to the decisions of a court created or designated under such agreements as regards the interpretation and application of their provisions’.

At the same time, however, EU law imposes certain limits on the creation by the Member States or by the Union of judicial bodies outside the Union. Those limits stem not only from the Treaties themselves, but also from the principles developed by the Court in its case law, primarily the principle of the autonomy of EU law and the principle of mutual trust.

At the time when the request for Opinion 1/17 was made, the outlines of those two principles had been clarified, inter alia, in Opinion 2/13 and in the Achmea judgment. In both cases, the practical implications of the principles of autonomy of EU law and mutual trust had also emerged, which led legal scholars to question whether the European Union could still conclude agreements with third countries providing for a dispute settlement mechanism.

It against this background that the leading French lawyer Yves Bot drew up his Opinion in the case concerning the compatibility of the Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part, signed in Brussels on 30 October 2016 (OJ 2017 L 11, p. 23; ‘CETA’) with EU law and which gave rise to Opinion 1/17.