European Court Supports Disclosure of Document

3 July 2014

The European Court of Justice has endorsed  disclosure of a document concerning European Union negotiations with the United States on the handling of citizens’ banking information.

The court backed a July 2009 request by a Dutch Member of the European Parliament, Sophie in ‘t Veld, for access to a legal opinion prepared during negotiations that eventually resulted in a 2010 agreement with the United States.

In an effort to combat terrorism, the US had ordered a Belgian company, SWIFT (Society for Worldwide Interbank Financial Telecommunication), to hand over information about transactions sent through its U.S. operating center. The subsequent US-EU agreement regulated the transfer to the US of information on international bank transfers.

The court’s July 3 ruling will require the European Council to reconsider its denial of the access request.

The court said a lower court erroneously applied the “specific and actual harm standard” and that the EC failed to provide “any evidence” that disclosure would pose a risk to international negotiations.

In ‘t Veld called the ruling “a great victory.” She said, “The Court clearly states that transparency is a prerequisite for a truly democratic Europe.”

Steve Peers, Professor of EU and Human Rights Law at the University of Essex, assessed the impact of the ruling in blog post, writing:

In principle, this judgment could significantly open up the debate concerning the legality of planned international treaties. While the CJEU did not rule that legal advice in such cases should be disclosed as a rule (as legal advice relating to legislative procedures must), it is now clear that refusing access to such documents as a rule is a breach of the access to documents regulation.

Peers further said:

The Court ruled that while legal advice relating to international treaty negotiations did not always have to be disclosed, it could not always automatically be refused either. Rather, the Council had to give reasons why disclosing the opinion to the public (after redacting all of the information relating to the substance of the negotiations) would undermine international negotiations.

 Furthermore, the CJEU ruled that the General Court was right to apply a more stringent standard of judicial review as regards this issue as compared to the substantive negotiating mandate (where the EU courts would still leave a wide discretion to the EU institutions).

 The court also held that the EC could not rely on the legal advice exception to withhold the document.

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