The transparency exercised by the European Parliament in disclosing the European Parliament's Legal Service Opinion is laudable and a future precedent for the disclosure of documents of the institutions, in particular Legal Opinions. As such, the document's release is a positive step for transparency and accountability of EU institutions. ClientEarth has been able to assess the Legal Opinion and in this briefing raises the following legal issues that the European Parliament's Legal Service has not sufficiently addressed: 1. The Legal Opinion does not sufficiently appreciates many of the similarities between the (limited) powers of the investment Tribunals in CETA and the European Court on Human Rights under the European Convention on Human Rights; and the consequences of the negative Opinion of the European Court of Justice in Opinion 2/13 for investment arbitration. 2. The Legal Opinion is does not sufficiently recognize the powers of the ECJ on claims for damages against the EU. 3. The Legal Opinion also does not sufficiently recognize the problems investment arbitration poses for the EU internal market, in particular the potential for discrimination among EU undertakings. 4. The Legal Opinion also does not address the risks and consequences of a successful challenge to a Council decision concluding CETA. The EU and its Member States might be faced with international legal obligations they cannot honour under EU law if such a challenge is successful in the future. Investment arbitration in CETA poses fundamental legal problems to the EU’s legal and judicial system that can only be properly assessed by the European Court of Justice.
|Published||September 5, 2016|