European Court Backs Confidentiality for Trade Talks

25 March 2013

The Second Chamber of the European General Court March 19 ruled against an effort to obtain documents related to the proposed Anti-Counterfeiting Trade Agreement (ACTA).

The decision went mostly against complainant Sophie in ’t Veld, a member of the Liberal Party Group in the European Parliament.

The court agreed with her regarding some documents, but agreed with the European Commission that most of the requested documents would have undermined the Commission’s negotiating position.

“Today’s ruling unfortunately upholds the culture of discretion and confidentiality of diplomats that was common in the fifties,” Dutch MEP in ’t Veldsaid in a press release.

The Court backed the Commission’s 2010 withholding of documents on EU comments on the draft treaty chapter on criminal enforcement, including several preparatory and working documents issued by the Council of the European Union on this issue. Access was also denied for Commission documents with assessments of the other parties’ proposals. Also kept confidential was the day-to-day e-mail correspondence with the other ACTA partners.

In challenging numerous redactions made in the documents, in ‘t Veld relied on full versions of the documents, to argue that the redactions went too far.

The Commission claimed it was justified, under Article 4(1)(a), third indent, of Regulation No 1049/2001, in refusing access to documents whose disclosure would have undermined the protection of the public interest as regards international relations. The parties in the negotiations had a confidentiality agreement.

The court largely concurred in a lengthy ruling dealing with the various requested documents.

Onno Brouwer,  in’t Veld’s attorney, said in the press release: “The crucial question is whether citizens may know about the EU’s positions and proposals during the negotiation of international treaties such as ACTA, which are binding for those citizens. 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. The question is whether this is in line with the Lisbon Treaty.”

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