Professor Wins Access to Papers Behind EU Treaty

     (CN) – The European Council made “a manifest error in assessment” when it withheld documents on amendments to a human rights treaty, a court ruled Thursday.
     University of Utrecht law professor Leonard Besselink requested access to a document drafted by the council that authorized the European Commission to negotiate the full EU accession in 1950 to amendments of the Convention for the Protection of Human Rights and Fundamental Freedoms, known as ECHR.
     The classified document contained orders and negotiating points that commissioners had to follow to protect EU interests. Claiming that disclosing the document would reveal the EU’s strategic objectives and weaken its position in future negotiations, lawmakers refused to give Besselink full access.
     Besselink brought an action against the council before the General Court of the European Union, arguing that lawmakers improperly used freedom of information exemptions to keep him from viewing the document. The court agreed only as to a portion of the document called “Negotiating Directive No. 5.”
     “It must be emphasized that Negotiating Directive No. 5 was communicated to the negotiating partners,” the Luxembourg-based court wrote. “Accordingly, the risk that the public interest as regards international relations will be undermined cannot be justified on the ground that disclosure of that directive would weaken the EU’s negotiating position.”
     Furthermore, the court agreed with Besselink that the council’s reliance on the international relations exemption is misplaced because the document has already been widely paraphrased and discussed.
     “It is apparent that Negotiating Directive No. 5 contains only the EU’s position on the accession to the additional protocols and does not contain, for example, the position of the its negotiating partners or its position on the position of its partners,” the justices wrote. “Thus, disclosure of Negotiating Directive No. 5 cannot jeopardize the climate of confidence between the parties participating directly or indirectly in those negotiations. It is not apparent from the contested decision how disclosure of the negotiating directive would actually and effectively undermine the public interest as regards international relations. The council merely observes that the exception covering the public interest as regards international relations also applies to unilateral acts, without indicating the specific elements on which it might be concluded that disclosure would undermine that public interest. Accordingly, it must be concluded that the council made a manifest error of assessment in refusing access to Negotiating Directive No. 5.”
     While the court acknowledged that the council can apply the international relations exemption to other portions of the document to protect its negotiation tactics, it cautioned against doing so too strictly.
     “Certain parts of the negotiating directives could have been disclosed without the public interest of the EU as regards international relations being affected,” the court wrote. “That is the case for the parts of the draft decision and the negotiating directives in which the council merely referred to the principles that should govern the negotiations for the accession of the EU to the ECHR.”
     The justices added: “The same also applies to the negotiating directives, in which the council establishes, at most, a list of questions to be addressed in the negotiations, but without specifically answering them. In those circumstances, the error leads to the conclusion that the analysis carried out in the contested decision as to the extent to which partial access should be granted was unlawful.”
     It follows from all of those considerations that, in the context of partial access to the document, the council has not fulfilled its obligation to limit its refusal solely to the information covered by the exception on which it relied,” the court concluded.
     The European Council has 60 days to appeal the lower court’s decision to the Court of Justice.

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