European Court Upholds Confidentiality In International Treaty Talks

The Second Chamber of the European General Court in a judgment today strengthened confidentiality rules in international treaty negotiations.

For the full text see here.

It ruled mainly against complainant Sophie in’t Veld, member of the Liberal Party Group in the European Parliament, who had asked for the partial annulment of a decision by the European Commission to refuse access for a long list of documents relating to the international Anti-Counterfeiting Trade Agreement (ACTA).

The Court had ruled in favour of in’t Veld that the Commission had classified too many documents – even a mere description “concerning European Union law in the field of intellectual property, in relation to the Internet.” But the Court also had, according to in’t Veld, “supported the Commission by stating that a general confidentiality agreement with negotiating partners is allowed.” See press release here.

The Court said the Commission was justified in withholding for example documents on member states’ positioning on criminal law enforcement provisions in ACTA, or on daily email between the negotiators, which are withheld by the ruling from the public eye, based on provisions in article 4 of EU Regulation 1049/2001.

“The unilateral disclosure of those documents by the European Union, in the context of international negotiations based on mutual trust between negotiating parties, would have undermined the protection of the public interest as regards international relations,” it said.

In an initial reaction, in’t Veld warned, “This way diplomatic negotiations are routinely classified confidential while citizens are left in the dark.” Her lawyer Onno Brouwer said, according to in’t Veld’s press release, “With this ruling, the Court gives an explanation of the exception provided in the transparency-regulation for the protection of international relations and puts diplomacy above democracy.”

It is unclear whether in’t Veld will appeal today’s decision, her assistant told Intellectual Property Watch. In her press release, she announced that she will make transparency a key issue in the 2014 parliamentary election campaign.

The current EU transparency regulation is considered no longer sufficient, and a review of the Transparency Regulation started in 2008 is in a deadlock between the institutions.

Last year, in’t Veld partially won another transparency case before the Fifth Chamber of the General Court regarding refusal of access to information about the negotiations on the Terrorist-Finance Tracking Program between the EU and the US. This was appealed by the Council based on the argument, inter alia, that it was not up to the Court to carry out a full review of the Council’s reasons for denying access and thereby “replacing the Council’s assessment of the foreign policy consequences of the public release of the document with its own assessment.”

The Foundation for a Free Information Infrastructure heavily criticised the ruling, stating that the Court disregarded that “multinationals do have access to negotiation texts, … meaningful debates in parliaments are impossible this way,” and “scrutiny gives a higher quality.” It called the judgment “a disservice to democracy.”