How much can citizens of the European Union know about the way they are governed? A recent ruling by the European Court of Justice suggests that in the conduct of foreign policy, the EU remains less than fully committed to public openness.
In March, 2013, the European Court of Justice ruled that the European Commission could legitimately refuse to release documents to a Dutch member of the European Parliament related to negotiations with the United States over a controversial Anti-Counterfeiting Trade Agreement (ACTA). Sophie in’t Veld, the MEP in question, argued that the “ruling unfortunately upholds the culture of discretion and confidentiality of diplomats that was common in the 1950s.”
In In’t Veld v. European Commission, the court held that the Commission had provided sufficient reasons for withholding some of the documents, by arguing that disclosure would undermine “the protection of public interest as regards international relations.” Notably, the court rejected the applicant’s attempt to invoke an overriding public interest in releasing the documents in question, saying the information requested was covered by a mandatory exception to the rights of public access guaranteed under EU law.
The EU’s access to documents regime seeks to provide the “widest possible access to documents.” But it establishes three main categories where information may be withheld. The first—invoked by the European Court in this case—covers public security, defence and military matters, international relations, the economic policy of the EU or a member state, as well as the privacy and personal integrity of individuals. In these areas, the fact that any harm could be caused by releasing the information outweighs any argument of potential public interest, creating a mandatory exception.
The second category allows EU institutions to withhold information on a discretionary basis, if it is judged that the benefit to the public interest of releasing the information is offset by what might be caused to the commercial interests of third parties, the integrity of court proceedings, internal legal advice, and the effectiveness of inspections, investigations and audits.
A third category allows EU institutions to withhold information in any area where there would be a serious threat to EU decision-making process, but this must be weighed against the public interest in disclosure. In case of concluded proceedings, the institutions refusing to provide access to related documents have to give specific reasons, supported by detailed evidence based on the content of the documents, to demonstrate that disclosure would seriously undermine the decision-making process.
The so-called absolute exceptions covered by the first category, and invoked in the in’t Veld case, are increasingly losing favor in right to information law globally. Nearly half of the laws surveyed in a recent comparative analysis included a public interest test. This recent analysis of 93 national right-to-information laws found that public interest tests are strong and effective when they (i) are mandatory or automatically applied, (ii) apply to all exceptions, (iii) are structured to favor disclosure, and (iv) set out the relevant factors to consider. The public interest test flows from the general principle that restrictions on the right of access to information—as all restrictions on fundamental rights—must be necessary and proportionate.
It can be argued that the case for including a public interest assessment is especially compelling when it comes to treaty negotiations, in which there is significant public interest. The ACTA negotiations were particularly controversial because they were conducted behind closed doors, bypassing internationally recognized forums like WIPO or WTO and with almost no involvement of the civil society. While the central focus of ACTA was enforcement of intellectual property rights, its provisions had serious implications for freedom of expression and information and individual privacy.
But the door is likely to remain closed to similar cases such as In’t Veld in the future, as long as the EU Regulation maintains its current absolute exemptions. At a time of widespread financial, political and credibility crisis in Europe, the need for revisiting proposals for a reform of the access to documents regime, which would enhance citizens’ trust in the transparency of EU operations, cannot be overstated.