Legal action has been launched by campaign group ClientEarth against the European Commission for keeping secret official analysis of whether a major part of the EU-Canada and EU-US trade deals is actually legal, in a further example of lack of transparency over the deals, Sputnik has been told.

The Transatlantic Trade and Investment Partnership (TTIP) and the Comprehensive Economic and Trade Agreement (CETA) trade agreements between the EU and the United States and Canada respectively are aimed at opening up a free trade area on both sides of the Atlantic.

At the heart of the deal is the controversial Investor-State Dispute Settlement (ISDS) protocol, under which companies that are barred from selling their goods and services in any state that is part of the agreement can sue the government for loss of earnings.

An example is food. If a US food company that produces chicken meat by cleaning the plucked carcass in chlorinated water is prevented from selling it in the EU — where such practice is banned — the company can invoke the ISDS protocol, have the case heard by a special tribunal and sue for loss of earnings. The same is true of genetically modified foods, which are largely banned in the EU, but not in the US.

ClientEarth has launched legal proceedings against the European Commission for keeping secret official analysis of whether the controversial ISDS protocol (or a proposed version of it, the Investment Court System) are compatible with EU law.

© Photo : ClientEarth Sample pages of the redacted analysis sent to ClientEarth by the Commission.

"Documents setting out the law are not strategic as they are not about negotiation tactics. The Commission is bound by the rule of law during trade negotiations, as at any other time. Disclosure of documents setting out these legal limits cannot weaken its negotiating position,"ClientEarth lawyer Laurens Ankersmit told Sputnik.

Sidelining EU Justice

The Commission has refused to disclose documents containing a purely legal discussion on the compatibility with EU law of investor provisions ISDS and ICS in trade agreements like TTIP and its Canadian equivalent, CETA.

Under EU transparency laws, the public has a right to see the documents. But the Commission refused access, saying disclosure of the legal reflections would undermine the Commission's negotiating position.

ClientEarth is taking the European Commission to court over investor protection papers https://t.co/D0iTRo7QDA — ClientEarth (@ClientEarth) October 13, 2016

​ClientEarth's own opinion is that ISDS mechanisms would set up an arbitration system outside of, but binding on, the EU judicial system.

"Such mechanisms would introduce an additional judicial relief within the EU legal order that is independent of the EU courts. It would, in effect, be a system that would enable foreign investors to sideline the EU courts and resort to claims that are not available to domestic investors," its own legal study said.