Environmental Group Loses Fight for EU Trade Records

LUXEMBOURG (CN) — The European Union’s highest court ruled Thursday that an environmental law charity cannot have access to documents relating to EU trade agreements.

London-based ClientEarth brought the suit against the European Commission, the EU’s cabinet body, after the commission refused to hand over the information and said doing so would harm the negotiating position of the EU in ongoing trade negotiations.

European Commission President Ursula von der Leyen speaks during an event in Brussels on Dec. 1, 2019. (AP Photo/Olivier Matthys)

The EU’s second-highest court, the European General Court, already sided with the commission, ruling in 2018 that ClientEarth wasn’t entitled to the information. The bloc’s top court, the European Court of Justice, upheld that decision Thursday.

In 2016, ClientEarth requested “all documents containing legal advice by the commission’s legal services” relating to the investor-state dispute settlement and investment court system in EU trade agreements. That same year, Canadian Prime Minister Justin Trudeau traveled to Brussels to sign the Comprehensive Economic and Trade Agreement, or CETA, a trade deal between Canada and the EU.

CETA removes 99% of customs duties between Canada and the 27-member political and economic union. The agreement has faced a lot of criticism from national governments worried about everything from lower Canadian standards for animal welfare to giving too much power to multinationals in the dispute mechanism.

Should companies have issues with the trade agreement, CETA creates a dispute mechanism called an investment court system, where those issues can be resolved.

“We are worried about the regulatory chill effect,” said Amandine Van Den Berghe, one of ClientEarth’s lawyers.

ClientEarth was concerned that the court system gave too much power to large multinationals that would use it to bully countries into easing environmental regulations. The court system was a particularly unpopular aspect of the trade agreement in Europe and, in 2017 Belgium asked the Court of Justice whether the court system would be compatible with EU law.

In 2019, the Court of Justice held: “An international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the EU, is, in principle, compatible with EU law.”

ClientEarth wanted to know whether the European Commission’s lawyers also had reservations about the court system. But under EU regulations, the commission can refuse access to documents if disclosure would undermine the protection of public interest.

In its 2018 ruling, the General Court held that “the Commission has a wide discretion when assessing whether the disclosure of a document could undermine the public interest.”

Thursday’s ruling from the Court of Justice – based in Luxembourg, like the General Court – upheld this assessment and found that the lower court had correctly determined that the “disclosure of certain parts of the requested documents would actually and specifically undermine that public interest.”

The court further ordered ClientEarth to pay the commission’s legal fees. The ruling is final and cannot be appealed.

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