European Union documents relating to the EU-US trade deal, the Transatlantic Trade and Investment Partnership (TTIP), could be made public after a European Court of Justice ruling yesterday (3 July).
TTIP is currently being negotiated between the EU and US. It will be the biggest bilateral trade deal in history if completed, and covers a wide range of goods and services. The sixth rounds of talks are set to start this month.
While the European Commission has said the talks have been open, some civil society organisations and members of European Parliament, including EP President Martin Schulz, have argued they are not transparent enough.
Wednesday's ruling was in relation to a case brought by Dutch Liberal MEP Sophie in ‘t Veld against the EU Council of Ministers over access to a legal opinion about transfers of bank data to the US.
The case was not about TTIP but the ruling on a point of law on the EU regulation over public access to documents, strengthens the hand of anyone wishing to apply for similar EU papers related to the trade agreement.
European judges ruled that documents related to international activity, which would include TTIP, are not automatically exempt from EU transparency requirements.
The Council must now give specific reasons why it would refuse such access. In the case, the Council argued that it had wide discretion not to disclose any document that threatened EU interests.
A modest step forward
Negotiating documents, or those relating to negotiating strategy or revealing the positions of foreign parties to negotiations, are exempt from the transparency requirements of the regulation. But other documents could be requested and may shed more light on the institutions’ thinking, lawyers told EurActiv.
The European Commission publishes papers about TTIP on a website and holds media briefings on the talks. It also provides more information about the negotiating process with the European Parliament than it is required to under the Lisbon Treaty.
Steven Peers, professor of EU law and human rights law at the University of Essex, said: “This judgment makes it possible to apply for any documents which include legal advice on the TTIP negotiations, with a very good chance of success. This might include advice on controversial issues such as genetically modified organisms and data protection.
“However, the Council and Commission can still refuse access to the negotiating mandate for the talks, and to any parts of the legal advice which mention that mandate. So overall, it's a fairly modest step forward.”
In 't Veld said the ruling would effect the transparency of the TTIP process, especially when combined with public pressure over transparency
"I think the negotiators will be aware of this ruling and they may think twice before making documents confidential," she told EurActiv last night.
The ruling could also make journalists, politicians and activists aware they can make such applications for documents, she added.
The document request, made by in 't Veld in July 2009, was about whether the EU had the competence to agree to the EU-US Terrorist Finance Tracking Programme and the the so-called 'SWIFT' agreement on sharing financial data across the Atlantic.
The SWIFT agreement with the US involves the sharing of personal banking data, including information such as the name and addresses of the payer and payee. After the Council denied her access to the opinion, in ‘t Veld took it the matter to court.
Onno Brouwer was the lawyer representing in ‘t Veld in Luxembourg-based European Court of Justice. He said, “It is a great victory for Sophie in 't Veld and the European citizens that the Court has now called the Council to order.
"The Court's view that a European institution must demonstrate that the disclosure of a document effectively harms the public interest is of great practical importance for journalists, interest groups and all those who wish to obtain access to EU documents."
Judges backed the lower court’s decision that the fact negotiations were ongoing was not an argument for denying access to documents. That is relevant to TTIP, as talks will continue until the end of the year.
Transparency requirements still held even if the Council is not legislating. They ruled and agreed with the lower court that the public interest was not outweighed by the need to protect legal advice, as the Council has argued.
In ‘t Veld said, “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."
waiting for ECJ ruling this morning in access to documents case (Council vs In 't Veld). Will court support transparency or not?
— Sophie in 't Veld (@SophieintVeld) July 3, 2014
YESSSSS!!!!!!! :) :) :)
— Sophie in 't Veld (@SophieintVeld) July 3, 2014
— ALDE Group (@ALDEgroup) July 3, 2014
The European Public Health Alliance (EPHA) commented on EurActiv's story by saying in’t Veld’s victory hopefully will lead to more transparency in a trade agreement that will affect 40% of the world’s trade:
“Yesterday’s ruling has the potential to ease the secrecy around these crucial trade negotiations. The current secrecy around the negotiations threatens European democracy and faith in the European institutions at a time when we need to be encouraging policy makers to be more open to the needs of the people. The secretive way the TTIP negotiations have been conducted are creating a climate of fear and further distrust,” said Emma Woodford, EPHA Interim Secretary General.
- Mid-July: Sixth round of TTIP talks
- End of 2014: Completion deadline for TTIP talks