The In ‘t Veld Ruling: Raising the Bar for Denying Access to EU Documents

24 July 2014

By Helen Darbishire and Pamela Bartlett Quintanilla

The authors — Darbishire, Executive Director, and Quintanilla, Researcher and Campaigner, at Access Info Europe — analyze the wider consequences of the recent European Court of Justice ruling (See previous FreedomInfo.org report).

The July 3, 2014, pro-transparency ruling by the European Court of Justice in the legal battle for access to negotiations between the European Union and the United States on sharing financial transaction data in order to fight terrorism, will make it harder for the EU to deny access to documents relating to international relations and legal advice, according to a leaked document seen by Access Info Europe.

In the document, drafted in response the court victory by Dutch MEP Sophie in ‘t Veld, the General Secretariat of the Council concludes that “it is becoming increasingly difficult to demonstrate that disclosure of a specific document would ‘specifically and actually’ undermine an interest protected by an exception in Article 4 of Regulation 1049/2001.”

The Council appears to be unhappy that the Court found that it had failed to convincingly argue how transparency around the SWIFT negotiations could foreseeably and more than purely hypothetically harm international relations or the protection of legal advice.

No Proof of Damage? Disclose

In plain English this means that if the Council can’t prove that it is likely that damage will be caused by publishing a document, then the document should be made public.

The analysis of the case by the Council’s General Secretariat also notes that the judgment narrows the room for manoeuvre – the EU body’s “margin of appreciation” – when it comes to refusing public access to documents, even when they are about the non-legislative process.

This is one of the most important aspects of the ruling: the EU treaties and existing jurisprudence, including the case of Access Info Europe v. Council (final ruling), have established that the threshold for refusing access based on an exception in the EU’s access to documents rules (Regulation 1049/2001) is higher when the document relates to legislative processes, but has afforded the EU institutions a wider margin for non-legislative documents. (See previous FreedomInfo.org report.)

Setting Higher Bar

This ruling sets the bar higher for denying access to a wider range of documents. The Council complains in the leaked memo that it will now be difficult to deny information without producing such detailed arguments that it might be forced into “revealing the information which it is sought to protect.”

In Access Info Europe’s analysis this is a rather disingenuous argument. Where it is evident from the nature of the material that harm could arise, that can still be denied. Indeed, in this case it was not disputed that the Council could deny access to the specific content of the proposed agreement or the negotiating directives.

The line drawn by this case is reasonably clear: genuinely sensitive information which could harm the ongoing negotiation could still be protected, but that the broader details should be made public. As other authors have noted (See article by Natacha Cingotti), this offers some hope for opening up processes such as the controversial Transatlantic Trade and Investment Partnership (TTIP) to greater public scrutiny and participation.

In the area of legal advice, the Court of Justice dismissed the Council’s arguments that the documents were sensitive because they related to international negotiations. The Court also found that the fact that the legal advice revealed discrepancies between the various EU institutions about which legal basis to use for entering into negotiations with the USA, was not in itself a reason for claiming that international relations could be harmed.

In this sense, the case also reveals the very different approaches taken by the different European Union institutions to transparency. The Parliament did release information about the SWIFT negotiations at the time of the request, and supported Ms in ‘t Veld as she defended the appeal by the Council against here 4 May 2012 first instance win.

The Council on the other hand was supported by the European Commission in the appeal. Access Info Europe notes that the two exceptions evoked in this case – the protection of international relations and the protection of legal advice – are both exceptions which we and other transparency advocates have identified potential areas of concern because of their broad and rather indiscriminate use. That may now change as the EU institutions have to work harder to justify why a particular document would be likely, “foreseeably and more than purely hypothetically,” to cause harm.

NOTES

Ms in ‘t Veld was represented at the European Court of Justice by Onno Brouwer, the same lawyer that represented Access Info Europe in its successful case against the Council for access to the negotiating positions of Member States in the Council.

The European Court of Justice confirmed the ruling of the General Court dated 4 May 2012 and dismissed all of the arguments in the Council’s appeal, in many cases citing the Access Info judgement.

Ms in ‘t Veld also commented in her own press release, dated 3 July 2014: “This is a great victory. The Court clearly states that transparency is a prerequisite for a truly democratic Europe. The European Union must develop from a Europe of diplomats, discretion and confidentiality to a Europe of citizens, administrative transparency and trust.”

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