If one thing resorts clearly from the ACTA saga, it is that the atmosphere of secrecy in which ACTA was negotiated (required allegedly to enable mutual trust between the parties in the negotiations) completely backfired and deteriorated trust in the European Commission by European citizens and the European Parliament, resulting in ACTA’s ultimate demise. In a case decided yesterday by the General Court this tension between secrecy needed for the effective conduct of negotiations and the right of citizens to be informed was readily apparent in determining whether the Commission was acting lawfully in its decision to refuse access to documents related to those negotiations to European Member of Parliament Sophie in ‘t Veld.
Transparency of government is without a doubt one of the core factors contributing to the legitimacy of the government in the eyes of those governed. Transparency of decisions and processes leading up to decisions enables citizens to verify and assess decisions made by the government and to judge whether the process and outcome of such decisions can be perceived as just. The EU, which as many would suggest has suffered from various legitimacy problems (most notably the so-called democratic deficit), has committed itself to enhancing transparency in order to make the EU more legitimate in the eyes of its citizens.
This is why the Charter of Fundamental Rights explicitly states that ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium’ (article 42 Charter and 15 (3) TFEU). Moreover, article 15 TFEU states that ‘In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’ . Lastly, the EU has adopted a transparency regulation (Regulation 1049/2001 on public access to European Parliament, Council and Commission documents) which enables citizens to request access to documents of these institutions.
While this commitment to transparency is laudable, it can also bite the effectiveness of public policy in areas which usually require a certain level of secrecy such as negotiations of international agreements. The problem with those negotiations in terms of transparency is that a successful outcome requires a certain level of mutual trust between negotiating parties with room to talk freely and to change positions during negotiations. It can also hamper the EU’s own negotiating position because other parties might know better where the EU is willing to compromise. This is why Regulation 1049/2001 contains a mandatory exception to disclosure of documents which would undermine the protection of the public interest as regards international relations (art. 4 (1) (a) third indent of the regulation).
T-301/10 Sophie in ‘t Veld v Commission
This is essentially the dilemma which the General Court faced in T-301/10 Sophie in ‘t Veld v Commission. The European Member of Parliament Sophie in ‘t Veld had requested a number of documents of the Commission as regards the negotiations of ACTA in light of the civil unrest at the time over its negotiation and conclusion. The applicant had argued that the Commission had erroneously relied on the international relations exemption because in her view that exemption only relates to disclosing information on the negotiating positions of third parties which would undermine the mutual trust between the parties, and not to the position of the EU itself. Furthermore, transparency in relation to the position of the EU reinforces rather than undermines the public interest as regards international relations (i.e. more transparency would more likely lead to an agreement).
The General Court first held that generally
the negotiation of international agreements can justify, in order to ensure the effectiveness of the negotiation, a certain level of discretion to allow mutual trust between negotiators and the development of a free and effective discussion. As the Commission points out, any form of negotiation necessarily entails a number of tactical considerations of the negotiators, and the necessary cooperation between the parties depends to a large extent on the existence of a climate of mutual trust.
[Moreover,] the Court held that initiating and conducting negotiations in order to conclude an international agreement fall, in principle, within the domain of the executive, and that public participation in the procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted, in view of the legitimate interest in not revealing strategic elements of the negotiations (Case T‑529/09 in ’t Veld v Council  ECR II-0000, paragraph 88; see also paragraph 57 and the end of paragraph 59 of the judgment).
Subsequently, the General Court refuted the argument set out above because it is in fact possible ‘that the disclosure of European Union positions in international negotiations could damage the protection of the public interest as regards international relations.’ This was so for three reasons. First, the General Court noted that ‘it is possible that the disclosure of the European Union’s positions in the negotiations could reveal, indirectly, those of other parties to the negotiations. This may be the case, in particular, when the European Union’s position is expressed when referring to that of another negotiating party, or when an examination of the position of the European Union or of its evolution during the negotiations allows the position of one or more other negotiating parties to be inferred, more or less accurately.’ (para. 124) In that respect, the General Court also noted that making positions anonymous when disclosing also hampered successful conclusion of the negotiations because
unilateral disclosure by one negotiating party of the negotiating position of one or more other parties, even if this appears anonymous at first sight, may be likely to seriously undermine, for the negotiating party whose position is made public and, moreover, for the other negotiating parties who are witnesses to that disclosure, the mutual trust essential to the effectiveness of those negotiations. As the Commission emphasises, establishing and protecting a sphere of mutual trust in the context of international relations is a very delicate exercise. (para. 126)
Second, it noted that ‘in the context of international negotiations, the positions taken by the European Union are, by definition, subject to change depending on the course of those negotiations, and on concessions and compromises made in that context by the various stakeholders. As has already been noted, the formulation of negotiating positions may involve a number of tactical considerations of the negotiators, including the European Union itself. In that context, it is possible that the disclosure by the European Union, to the public, of its own negotiating positions, even though the negotiating positions of the other parties remain secret, could, in practice, have a negative effect on the negotiating position of the European Union.’ (para 125)
Third, the General Court refuted the argument that more transparency would actually help the public interest with regard to international relations:
129 In the third place, as regards the argument that the disclosure of documents relating to the ACTA could only have reinforced the public interest with regard to international relations and avoid controversy arising from the leaked publication of certain proposals, it should be noted that, while it is true that the purpose of Regulation No 1049/2001 is to ensure maximum transparency by giving the fullest possible effect to the right of public access to documents of the European Union (recital 4 of the regulation), it nevertheless provides exceptions to the right of access to protect certain public or private interests, and in the present case, the public interest as regards international relations.
[In] so far as the applicant’s argument seeks, in essence, to invoke, in the present case, an overriding public interest in disclosure, it should be noted that the exceptions to the right to access under Article 4(1)(a) of Regulation No 1049/2001 are mandatory exceptions, unlike other exceptions to the right to access, and do not make any reference to the consideration of such an interest. In the context of an action for annulment of a decision to refuse access under Article 4(1)(a), third indent, of Regulation No 1049/2001, any argument based on an overriding public interest in disclosure must be rejected as ineffective.
This was so because according to the General Court ‘it is clear from the wording of Article 4(1)(a) of Regulation No 1049/2001 that, as regards the exceptions to the right of access provided for by that provision, refusal of access by the institution is mandatory where disclosure of a document to the public would damage the interests which that provision protects, without the need, in such a case and in contrast to the provisions, in particular, of Article 4(2), to balance the requirements connected to the protection of those interests against those which stem from other interests (para. 110).’
I do not find this last argument very convincing. More transparency over the ACTA negotiations could have helped the legitimacy of its cause internally while, at the same time, hampering its successful outcome externally (in defence of the Commission, they did disclose quite some information on ACTA during the negotiations). In other words, the fact that transparency might hamper the public interest as regards international relations externally does not mean that secrecy will not hamper the public interest as regards international relations internally. For the General Court, it seems, this is something to be considered after the negotiations have been concluded. It noted that ‘the conduct of negotiations for the conclusion of an international agreement falls, in principle, within the domain of the executive […] and that those negotiations do not in any way prejudice the public debate that may develop once the international agreement is signed, in the context of the ratification procedure.’
This is true, of course, and with the Treaty of Lisbon the European Parliament has received additional powers in relation to the conclusion of international agreements (see article 218 TFEU) which needs to give consent in the vast majority of the cases. These additional powers make it possible for citizens (indirectly, through their directly elected Members of Parliament in the EP) to withhold approval of international agreements that raise legitimacy questions. Yet, the emergence of a public debate after negotiations have been concluded can be too late in the eyes of the public. Legitimacy requires participation and insight in the process that leads up to decisions, too. No matter how good the agreement may be in the end, if the process leading up to it is not sufficiently transparent, citizens and their democratically elected representatives might not swallow it. So despite the rather Pyrrhic victory of the Commission in this case, it might want to reconsider how to deal with transparency issues involving international agreements in the future.