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In a letter to the European Parliament, Dutch EDRi member Vrijschrift suggests the Parliament ask the Court of Justice of the European Union (CJEU) whether the investor-to-state dispute settlement (ISDS) is compatible with the EU treaties.

Vrijschrift points out that the ISDS in the trade agreement with Singapore would expose our privacy to interference, expose the EU to claims for damages, compromise the independence of our data protection authorities, and compromise the effectiveness of the Court of Justice of the EU. In essence, the ISDS places investment tribunals above democracies.

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The European Commission has asked the CJEU for an opinion on the draft EU-Singapore trade agreement. However, the question is limited to EU-Member States competences: Is the EU competent to conclude the agreement on its own, or do national parliaments have a veto?

EU Member States and the European Parliament can submit written observations. The deadline for written observations is 8 January 2016. Another option for the Parliament and Member states is a separate request for an opinion under Article 218 (11) of the Treaty on the Functionning of the European Union. However, the 8 January deadline does not apply to this option.

Vrijschrift suggests in the letter to the Legal Affairs Committee (JURI) Members of Parliament (MEPs) that, through a written submission or a separate referral, the Parliament broaden the question to the CJEU to include compatibility of the trade agreement’s standard for data transfers, and its enforcement mechanisms with the EU Treaties and the Charter of Fundamental Rights of the European Union.

The Vrijschrift letter is complementary to ClientEarth’s study on the legality of ISDS. The Commission plans to include ISDS in a trade agreement with the US as well.

Vrijschrift: Letter to the legal affairs committee (08.12.2015)
https://people.vrijschrift.org/~ante/isds/Vrijschrift-JURI-2015-12-08.pdf

Introduction to the Letter to the legal affairs committee (08.12.2015)
https://www.vrijschrift.org/serendipity/index.php?/archives/192-Will-the-European-Parliament-ask-court-whether-ISDS-is-legal.html

Seven things you should know about EU-Singapore ISDS (02.12.2014)
https://www.vrijschrift.org/serendipity/exit.php?url_id=869&entry_id=192

Case A-2/15, The EU-Singapore Free Trade Agreement – a mixed agreement? (08.10.2015)
http://eulawradar.com/case-a-215-the-eu-singapore-free-trade-agreement-a-mixed-agreement/

White House defends ISDS (01.03.2015)
https://blog.ffii.org/white-house-defends-isds/

ENDitorial: EU Commission ISDS proposal – a threat to democracy (23.09.2015)
https://edri.org/enditorial-eu-commission-isds-proposal-threat-to-democracy/

Is investor-state dispute settlement legal? A plea for EU judges to check (23.10.2015)
http://www.blog.clientearth.org/investor-state-dispute-settlement-legal-plea-eu-judges-check/

Legality of investor state dispute settlement under EU law (26.10.2014)
http://www.clientearth.org/health-environment/health-environment-publications/legality-of-investor-state-dispute-settlement-under-eu-law-3020

(Contribution by Ante Wessels, EDRi member Vrijschrift, The Netherlands)

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