A Taste of Transparency: The CJEU Rules on Access to Legal Advice in Treaty Negotiations

Introduction

Data protection remains a point of contention between the EU and the USA. Disagreements existed even before Edward Snowden’s revelations about US surveillance practices, particularly regarding access to passenger data and financial transactions. These disputes were ultimately settled through treaties regulating US access for programs like the Terrorist Finance Tracking Program (TFTP). Notably, the European Parliament initially rejected the first TFTP agreement, only approving a revised version after amendments.

Recent judgments by the Court of Justice of the European Union (CJEU) on data retention, Google Spain, and the ongoing Europe v Facebook case raise questions about the validity of these data-sharing treaties under EU law. This will be explored further in a future post.

This post focuses on a related CJEU ruling concerning transparency during the TFTP treaty negotiations. Disagreements arose regarding the EU’s legal basis for the treaty, prompting a legal opinion from the Council’s legal service. MEP Sophie in ’t Veld requested access to this opinion but was denied, with the Council arguing that disclosure would jeopardize negotiations. The General Court partially upheld her challenge, and the Council’s subsequent appeal resulted in a complete defeat in today’s CJEU judgment. This ruling significantly expands public access to legal advice documents but maintains the possibility of withholding information regarding the substance of negotiations.

The Judgment

EU Regulation 1049/2001 generally guarantees public access to EU documents, but exceptions exist for “international relations” and “legal advice.” The General Court initially found that while the Council could withhold aspects of the TFTP legal opinion that revealed the EU’s negotiating position, it couldn’t automatically refuse access to the entire document. This was particularly true given that the legal basis dispute had been publicly mentioned in a European Parliament resolution, and such disagreements can be addressed through preliminary rulings by the CJEU.

The CJEU upheld this view, stating that while legal advice related to treaty negotiations isn’t automatically subject to disclosure, neither can it be universally withheld. The Council must provide specific justifications for refusing access, demonstrating how disclosure, even with redactions, would undermine negotiations. Furthermore, the CJEU affirmed the General Court’s application of a stricter standard of judicial review for this issue compared to the negotiating mandate itself, where EU institutions retain significant discretion.

Regarding the “legal advice” exception, the CJEU had previously determined in the Turco case that access could only be refused in legislative proceedings under exceptional circumstances. While treaty negotiations fall under executive powers granted to the Commission or High Representative, the General Court held that the exception didn’t apply in this instance. The Council’s argument for secrecy based on potential embarrassment was deemed too broad and unsubstantiated.

The court clarified that the “international relations” exception already addresses concerns related to international treaties, and EU law mandates a public interest override for the “legal advice” exception. In this case, the link to EU legislation on police cooperation and data exchange, combined with the diminished value of delayed disclosure, favored public interest. The CJEU again rejected all of the Council’s objections.

Comments

This judgment has the potential to significantly increase transparency surrounding the legality of proposed international treaties. While not requiring automatic disclosure of legal advice, the CJEU has made it clear that blanket refusals are unacceptable. The Council (or Commission) must provide concrete, case-specific reasons for withholding documents, demonstrating how their release would harm negotiations. This presents a challenge, as providing such justification without revealing sensitive information to the applicant is difficult.

Furthermore, the public interest in accessing this legal advice must be considered. Although not explicitly endorsed by the CJEU, the General Court’s reasoning on this point remains relevant. Therefore, when there’s a connection between treaty negotiations and EU legislative activity, particularly concerning issues of broad public concern like data protection, the public interest arguably takes precedence.

However, unlike the EU legislative process, the CJEU still grants institutions broad discretion in withholding information about their negotiating position. Consequently, any related details in legal advice can be redacted. Given the close relationship between legal advice and negotiating positions, the intelligibility of the remaining documents remains to be seen.

Will disclosing such documents harm the EU’s negotiating position? In the case of the USA, their intelligence agencies likely already possess this information. This might also be true to varying degrees with other negotiating partners.

As for the European Parliament, the Treaty already guarantees access to information on all ongoing negotiations, an enforceable right confirmed by a recent CJEU ruling. However, the scope of this right, specifically regarding negotiating mandates, remains unclear. The judgment does clarify that if the Parliament publicly acknowledges a legal dispute surrounding a proposed treaty, the Council’s arguments against disclosing legal advice are significantly weakened.

Another argument for secrecy in EU international negotiations is avoiding complications arising from public debate. However, this approach is often counterproductive. Secrecy breeds suspicion and fuels opposition, as seen with the EU-US free trade agreement negotiations.

While the process is ultimately democratic, requiring approval from the Council, European Parliament, and often national parliaments, the limited opportunity for open and public debate before negotiations conclude falls short of full transparency.

This judgment encourages more openness by facilitating access to legal advice related to treaty negotiations. While sometimes addressing broad concerns like human rights, this advice can also involve technical institutional matters. These details remain politically relevant, as they can determine the power dynamics between Member States, the European Parliament, and their ability to block treaties.

Ultimately, this judgment, while a step towards transparency, doesn’t satisfy the need for greater openness in treaty negotiations. The paradoxical effect of secrecy fueling opposition will persist. Granting access to legal advice without further insight into the substance of negotiations is a meager offering for those demanding greater public involvement, akin to receiving a salad when craving a steak.

Barnard & Peers: chapter 3, chapter 24