This is from Laurens Ankersmit:
The autonomy of the EU legal order and the preliminary reference procedure as the keystone of Europe’s judicial system
So what are the main legal issues underlying ICS and EU law? It is clear that the Treaties in principle permit international agreements providing for state-to-state dispute settlement between the EU and third countries (such as the WTO’s dispute settlement body). Such state-to-state dispute settlement mechanisms do not encroach on the powers of the ECJ, because TFEU Part Six, title 1, chapter 1, section 5 does not grant the EU courts the power to hear such disputes.
However, when it comes to claims by individuals involving questions of EU law, the situation is radically different. The preliminary reference procedure in article 267 TFEU gives the courts of the Member States and the European Court of Justice important powers to resolve such cases. In fact, the ECJ itself refers to this procedure as the ‘keystone’ of the EU’s judicial system. It is perhaps important to recall that Article 267 TFEU was central to the ECJ’s reasoning when it found that the Treaties constituted ‘a new legal order’ that gives individuals, not just the Member States, rights and obligations whose uniform interpretation the European Court of Justice oversees.
The ECJ has made clear in no uncertain terms that it has the exclusive power to give definitive interpretations of EU law and therefore ensure the uniform interpretation of EU law across Europe (See Opinion 2/13, paras. 244-248).However, as a fundamental purpose of ICS in CETA is to enable investors to challenge not only EU acts and decisions based on these acts, but also national acts which might involve EU law somehow, an ICS tribunal would have to interpret and give meaning to EU law. Similarly to the context of human rights law, ICS will therefore encroach on the powers of the EU courts to rule on questions of EU law. Furthermore, ICS in CETA does not require the exhaustion of domestic remedies, which would soften the risk of divergent interpretation as well as respect the powers of the courts of the Member States to hear claims by individuals involving questions of EU law. ICS in CETA also does not require prior involvement of the ECJ for questions of EU law faced by these ICS tribunals.
