The European Commission has to justify the secret revolving around its analysis of the Investor-State dispute settlement (ISDS) system’s legality before the European Court of Justice (CJEU). The question of the mechanism’s legality lies at the heart of the debate about the free trade agreements between the EU and the US (TTIP) and the EU and Canada (CETA). ClientEarth, an environmental NGO, is now suing the Commission for refusing to disclose a judicial opinion on the ISDS. The NGO merely received a censured version of the requested documents from which it is impossible to comprehend the analysis of the Commission’s jurists. The critics of the free trade agreements fear that the ISDS system allows powerful multinationals to sue governments before international tribunals, which directly threatens the capacity of states to legislate in the general interest. The Commission claims that keeping the analysis secret is necessary in order to protect the on-going negotiations with the US on TTIP. The European executive bases its argument on exceptions introduced to protect international relations, legal advice and the decision-making process. In contrast, ClientEarth submits that the documents are not of strategic nature because they do not concern negotiation techniques. The lawsuit by the NGO is based on the Aarhus Convention which stipulates that citizens have the right to participate in decision-making processes in environmental matters and to receive information from the public authorities. The CJEU, which has so far refused to deliver its opinion on the legality of the provisions relating to the dispute settlement system, now has to evaluate the defence put forward by the Commission.
