Wednesday

8th Feb 2023

Commission pushes for document secrecy despite court judgement

The European Commission and national governments are seeking to crack down on the rules granting access to their internal documents despite a ruling by the European Court of Justice calling on them to release legal opinions drafted by the EU Council's legal service.

A ruling on Friday (May 4th) by the European Court of Justice brought an end to a two-year legal dispute between Dutch Liberal MEP Sophie In't Veld and the European Council over access to documents regarding the controversial Swift agreement on transferring banking data.

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In July 2009, In't Veld demanded access to an opinion drafted by the council's legal service regarding the start of negotiations on Swift.

The agreement was finally approved by the European Parliament in July 2010 after the EU secured a set of safeguards on privacy and data protection rights. An earlier pact between EU and US officials in January 2010 was rejected by MEPs who claimed it would give the US unrestricted access to data in the EU.

Under the agreement, US investigators have access to the 80 percent of electronic bank transfers which are facilitated by Swift. The council refused to release the papers, claiming that disclosure of the document would "negatively impact on the European Union's negotiating position" and that the analysis was "only intended for the members of the council."

The Luxembourg-court dismissed this however, saying that the council had "not established the risk of a threat to the public interest" and described as "not convincing" the attempts to show that disclosure would undermine the protection of legal advice.

In't Veld - who earlier this year drafted a report for the parliament's civil liberties committee calling on MEPs to reject the EU/US agreement on the data transfer of flight passengers - described the ruling as "a step forward for transparency in Europe" which establishes a precedent that "negotiations on international agreements are not automatically exempt from EU transparency rules."

The court ruling comes as the European Parliament and ministers remain at loggerheads over the re-cast of the 10 year old regulation on public access to documents held by the EU institutions.

In December 2011 the parliament adopted a report by British centre-left MEP Michael Cashman aimed at increasing the access of members of the public to EU documents.

Cashman criticised the commission proposal, arguing that it would "represent a step backwards for transparency." He is now seeking to cut the number of exceptions for disclosure and to reform the types of documents that would remain classified. He also wants to impose sanctions on officials who refuse to comply with the regulations.

However, Maros Sefcovic, the EU commissioner responsible for relations between the institutions, remains insistent that the EU executive will not accept these measures.

Instead, the commission, backed by a majority in the council of ministers, is bidding to designate more documents as "meriting special protection" - excluding them from public access.

Their proposal, set out in working papers by the commission and the Danish presidency, would block access to papers on competition cases looking at cartels, mergers and state-aid, court proceedings, infringement procedures and legal advice.

If no agreement can be found between parliament and the council the existing regulation will remain in place.

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