We cannot be certain, but the fact that the EC is refusing to release the opinion and they are now being sued over this:
The European Commission faces an EU court battle to keep secret its lawyers’ analysis on whether the controversial investor-state-dispute (ISDS) clause in draft trade deals with the USA and Canada is illegal.
ClientEarth, an NGO of environmental lawyers, has slapped the Commission with a lawsuit after applying for the legal opinion using EU transparency rules.
It received heavily redacted documents that make it impossible to see the analysis of whether ISDS is legal under EU law. The redactions will be embarrassing for an institution that regularly claims to be the most transparent in the world and far more so than national governments.
ISDS is controversial because critics argue it will allow powerful multinationals to sue governments in international tribunals, which can have a chilling effect on their willingness to regulate in the public interest.
The Commission claims that the black-out is needed to protect its negotiations with the US on the Transatlantic Trade and Investment Partnership (TTIP) but that will now be tested by judges in the EU’s General Court in Luxembourg. The executive is mandated by member states to handle free trade agreement talks.
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Were the Commission to be ultimately forced to publish analysis that found ISDS was incompatible with EU law, it could call the much-debated TTIP deal into question.
A legal precedent would also be set but the Commission would be able to appeal any decision to the European Court of Justice, which has so far resisted calls to issue an opinion on the clause’s legality.
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The London-based NGO argues that ISDS is a “discriminatory legal tool” that creates an alternative legal system and may not be compatible with EU law.
The German Association of Judges and European Association of Judges have also expressed strong reservations. The Belgian parliament of Wallonia has called on the ECJ to give an opinion on the issue.
Lets be clear on this: Secrecy here is not about negotiating positions. It is about deceiving the general public and promulgating a deal which will hurt ordinary folk for the benefit of banksters and other rent seekers.