On 2 March 2021, the German Constitutional Court (GCC) rejected an application by the Left-wing parliamentary group DIE LINKE (‘The Left’) as inadmissible. The Left group had filed a complaint against a statement made by the Bundestag (the German Parliament) on 22 September 2016. It argued that the Parliament had failed to give constitutive consent to CETA’s provisional application through a formal mandate law. CETA stands for Comprehensive Economic and Trade Agreement and is a free trade agreement between the EU and Canada that contains numerous trade and customs facilitations. As a new-generation trade agreement, it contains many rules for reducing non-tariff trade barriers. The Left rejects such agreements because they will allegedly “drag down rules on environmental, consumer and worker protection in the interests of corporate interests.” The Left Party understands a “formal mandate law,” or formal consent, to be a formal parliamentary law that prescribes to the federal government how it must behave in such trade negotiations and in the vote in the Council of the EU. In its CETA ruling, the GCC has now concretised the German Parliament’s so-called responsibility for European integration once again.
Mandate law instead of statement?
In its opinion of 22 September 2016, the Bundestag had called on the German Federal Government to advance CETA as a mixed agreement between the EU, the Member States and Canada and to agree on exceptions to a provisional application, especially in investment protection. The Bundestag had also instructed the German government to inform itself early and comprehensively about further developments connected with the free trade agreement. However, the Left group believed the Parliament had failed to fulfil sufficiently its responsibility for European integration. The meaning of this responsibility is outlined in the following section. Instead, according to the Left group, the Bundestag should have adopted a formal “mandate law“ to allow the German representative in the Council of the European Union to approve the provisional application of CETA and give it concrete guidelines in this regard. The Left group believed that the Bundestag’s responsibility for European integration had been condensed into a concrete duty to ensure that ultra vires actions and violations of constitutional identity did not take place. In the opinion of the Left Party, the Bundestag is obliged to issue a formal consent, i.e. a legal authorization or instruction to the German representative in the Council of the European Union, which can legitimize the use of sovereign rights by the European Union. This obligation should follow from Article 23 Grundgesetz (‘GG’, German Basic Law). But the Left group’s complaint remained vague about how a mandate law would serve to “constitutively limit” and “democratically pre-structure” the CETA agreement.