The different approaches between the EU and the USA as regards data protection continue to result in considerable friction. Even before the Snowden revelations about the surveillance of EU citizens by the American security services, there were arguments about American access to airlines’ passenger name records and information about money transfers.
Both of these disputes were eventually solved by means of a treaty between the US and the EU regulating the USA’s access to such information. As regards money transfers, that access enables the USA to carry out its ‘Terrorist Finance Tracking Programme’ (TFTP). While the first version of the treaty regulating access to the TFTP data was rejected by the European Parliament (EP), a second version was approved after the text was amended.
After the CJEU’s recent judgments concerning data retention and Google Spain, and in light of the pending Europe v Facebook case, it might now be questioned whether the EU/US treaties on passenger data and TFTP are invalid due to breach of the data protection rights guaranteed by EU law. However, that’s a topic for a future blog post.
In the meantime, the Court of Justice of the European Union (CJEU) ruled today on a related question. When the negotiations for the TFTP treaty were underway, the ‘legal base’ of the future treaty (ie, the precise EU powers to negotiate and conclude it) was disputed, and the Council’s legal service gave a legal opinion on this issue. A Member of the European Parliament (MEP), Sophie in’t Veld, requested access to the legal opinion and was refused, on the grounds that revealing legal advice relating to international negotiations would undermine those negotiations. She challenged this decision before the General Court, and was partly successful.
The Council appealed that judgment to the Court of Justice, and has entirely lost in today’s judgment. While that judgment significantly increases public access to documents as regards legal advice, it still leaves intact the possibility of the institutions to refuse access as regards the substance of negotiations.
The EU’s access to documents legislation (Regulation 1049/2001) provides in principle for public access to EU documents. It contains exceptions allowing documents to be refused on grounds of (among other grounds) ‘international relations’ and ‘legal advice’. According to the General Court, the Council legal service’s advice on the TFTP treaty could be refused on the former ground, to the extent that it disclosed substantive details of the draft negotiating mandate, since this would damage the EU’s position by revealing it to the other side.
However, to the extent that the legal advice did not reveal the EU’s substantive negotiating position, this ground for refusal could not automatically be applied. The General Court took into account the fact that an EP resolution had already made this particular legal base issue public, and that legal base disputes relating to international treaties can be the subject of advance rulings of the CJEU before those treaties come into force.
As regards this first issue, all of the Council’s objections to the judgment were rejected by the CJEU. The Court ruled that while legal advice relating to international treaty negotiations did not always have to be disclosed, it could not always automatically be refused either. Rather, the Council had to give reasons why disclosing the opinion to the public (after redacting all of the information relating to the substance of the negotiations) would undermine international negotiations.
Furthermore, the CJEU ruled that the General Court was right to apply a more stringent standard of judicial review as regards this issue as compared to the substantive negotiating mandate (where the EU courts would still leave a wide discretion to the EU institutions).
The second issue was the ‘legal advice’ exception. The CJEU had previously ruled, in the Turco case, that access to legal advice could only be exceptionally refused in legislative proceedings. By contrast, the negotiation of an international treaty is an executive power, conferred by the Treaties upon the EU Commission or the High Representative for EU foreign policy.
But nevertheless, the General Court had ruled that the legal advice exception could not be applied in this case either. The Council’s argument that it needed to keep legal advice secret to avoid embarrassment was too general and unsubstantiated. It was irrelevant that the legal advice concerned an international treaty, since the ‘international relations’ exception already addressed that aspect. Moreover, the EU legislation provides that the use of the ‘legal advice’ exception is subject to a public interest override. On this point, there was a close link to the EU’s legislative activity relating to police cooperation and personal data exchange, and waiting until the agreement was in force would rob public access to information of much of its purpose. Again, all of the Council’s objections to the judgment were rejected by the CJEU.
In principle, this judgment could significantly open up the debate concerning the legality of planned international treaties. While the CJEU did not rule that legal advice in such cases should be disclosed as a rule (as legal advice relating to legislative procedures must), it is now clear that refusing access to such documents as a rule is a breach of the access to documents regulation. The Council (or Commission) must give detailed specific reasons to show why they think such documents should be refused because their release would undermine the conduct of negotiations in any specific case. This is obviously a difficult task, since to provide those reasons, those institutions would have to predict the hypothetical actions of third States without disclosing to the applicant much of the details.
Moreover, they must consider the public interest in access to that legal advice. The General Court’s further reasoning on this issue wasn’t expressly endorsed by the CJEU, but neither did the CJEU disavow it. So it is arguable that whenever there is a link between the treaty negotiations in question and the EU’s legislative activity, and/or the treaty in question touches upon an issue of broad public concern like data protection, then the public interest overrides the Council’s.
On the other hand, unlike the position as regards the EU legislative process, the CJEU has left intact wide discretion for the institutions to refuse to disclose their negotiating position, and therefore any details of that position in the legal advice can be redacted. Since there is an obvious close link between the legal advice and the substantive position, it remains to be seen whether the documents will still be intelligible.
Will the release of such documents damage the EU’s negotiating positions as regards international treaties? In the case of the USA, surely it has seen all the documents anyway, due to the efficiency of its espionage agencies. That will also be the case, to some extent, with some or all of the other countries the EU negotiates with.
As for the European Parliament, the Treaty anyway guarantees it information on all ongoing negotiations, and the CJEU has recently confirmed that this is an enforceable right. However, it is not yet clear how far that right extends, and in particular whether it extends to negotiating mandates. In any event, it is clear from the judgment that if the EP hears about a legal dispute concerning a planned treaty, and decides to make that dispute public by referring to it in a resolution, the Council’s argument that the legal advice cannot be disclosed is significantly weakened.
Another reason for the secrecy of the EU’s international negotiations may be to avoid complications arising from public debate. However, this strategy is largely self-defeating, since the secrecy itself engenders great suspicion from critics about what the EU and its negotiating partners might be planning, and so may fuel opposition to the eventual treaty (if the negotiations are successful). A clear case in point is the current talks on an EU/US free trade agreement.
It is true to say that this process is ultimately democratic, since all international treaties agreed by the EU and third States then have to be approved by the Council, and most have to be approved by the European Parliament and often also national parliaments. However, it is not democratic in the full sense of the term, since there is a very limited opportunity for and open and public debate (as compared to the legislative process) before the negotiations have concluded.
Today’s judgment has opened up that debate somewhat, by making it easier to make a successful request for the legal advice relating to such negotiations. Sometimes the legal advice may relate to broad issues of public concern, such as human rights protection, but sometimes it will relate to more technical institutional points. The latter points could still be relevant politically, since they could determine (for instance) how much power Member States or the EP have to block a treaty if they object to the substance of it.
But overall, the judgment will not satisfy the demand for greater openness of the treaty negotiation procedure, and so the paradoxical effect of secrecy breeding opposition to treaties will continue. For those who seek greater public involvement in the process, getting access to more information on legal advice but no further information on the substance of the talks is like being served a salad when they are hungry for steak.
Barnard & Peers: chapter 3, chapter 24