자유무역협정의 헌법적 정당성에 대한 검토:독일 연방헌법재판소의 결정을 중심으로

The European Union and Canada co-signed the Canada-EU Comprehensive Economic and Trade Agreement (CETA). At the time, Germany was about to make a decision on CETA at the Council of the European Union session that was scheduled for the adoption of a decision on the trade agreement. Against this backdrop, the German people and members of the German Federal Parliament filed a constitutional suit to pursue an injunction against Germany’s decision on the CETA in the Council. The key issues here were approval of the provisional application of CETA, approval of the establishment of the CETA joint committee, and the unconstitutionality of an investment court establishment. In this decision, the German Constitutional Court carried out a spectacular legal acrobatic move. The Court pointed out unconstitutional elements of the CETA regulation for its reasoning. However, at the same time, the Court provided conditions that could help the government avoid or mitigate unconstitutional consequences. Based on this, the German Constitutional Court determined that the German federal government could deflect the potential unconstitutional controversy that could arise from the issue if it follows the interpretation of the treaty and action guidelines suggested by the tribunal. Under this premise, the Court confirmed that the diplomatic risk that the German government would have to take when allowing an injunction was higher than the risk that would arise from rejecting the claim. The decision allowed the German Federal Constitutional Court to retain its constitutional control over European integration, which is symbolized by CETA while avoiding political responsibility caused by the failure of CETA. This decision by the German Federal Constitutional Court is related to the perspective of the European Union, but there are also many implications for us regarding constitutional and democratic control of foreign policymaking in today’s globalized, international society.