EU Parliament ICS opinion ignores legal pitfalls

Client Earth | 6 September 2016

EU Parliament ICS opinion ignores legal pitfalls

Highly controversial investor rules in the EU-Canada free trade agreement (CETA) led the EU Parliament to ask its legal service whether they were compatible with EU law, and the analysis has just been published.

This is a boost for EU transparency, but the opinion reads like a defence of the Investment Court System (ICS). In saying ICS may be compatible with EU law, the opinion of the legal service sounds like a justification aimed at the European Court of Justice rather than an honest legal assessment.

EU Parliament ICS opinion ignores clear legal issues

ClientEarth analysis shows several important deficiencies in the opinion of the European Parliament’s legal service:

  • The Legal Opinion underestimates many of the similarities between the powers of the investment Tribunals in CETA and the European Court on Human Rights; and the consequences of the negative Opinion of the European Court of Justice in Opinion 2/13 for investment arbitration.
  • The Legal Opinion is does not sufficiently recognise the powers of the European Court of Justice on claims for damages against the EU.
  • The Legal Opinion also underestimates the problems ICS poses for the EU internal market, in particular the potential for discrimination among EU businesses.
  • The Legal Opinion also does not address the risks and consequences of a successful challenge to a Council decision concluding CETA.

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source: Client Earth