Abstract
As the EU's competences and activities in the area of external relations expand, it becomes increasingly relevant for citizens and civil society to be able to access documents related to EU external action in order to effectively participate in the democratic life of the EU. Yet many of the documents held by EU institutions on external affairs potentially fall within the scope of the ‘international relations’ and ‘defence and military matters’ exceptions contained in the EU's Access to Documents Regulation 1049/2001. This contribution critically assesses the application of these exceptions by the Court of Justice of the EU, the Ombudsman and the EU institutions themselves, and identifies which rationales might warrant withholding access to specific types of documents that concern EU external relations. In light of the expansion of the EU's external competences, this article argues that EU institutions should properly substantiate any refusal to disclose a document in this field, and the CJEU should apply stronger judicial scrutiny of the use of these exceptions, in order to safeguard the fundamental right of access to documents, and safeguard the democratic legitimacy of decision-making in the EU.
Keywords
Introduction
The EU, as an actor in international relations, has undergone a formidable transformation since the Treaty of Rome in 1957 provided the Union with the competence to negotiate and conclude international agreements in a few selected areas such as trade. The Union is now tasked with an ambitious international agenda set out in Articles 3(5) and 21 TEU that includes contributing to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
The more the Union is active on the international stage, the more documents are held by its institutions that concern EU external affairs. This development makes it increasingly relevant for citizens and civil society to be able to access documents pertaining to the EU's external relations. Article 10(3) TEU lays down the core value of transparency in the EU, and underlines the importance of decisions being taken as openly as possible, which ensures that the general public can participate in the democratic life of the Union. Furthermore, Article 42 CFR establishes the fundamental right of access to documents held by EU institutions. The EU legislator itself also recognizes that increased openness leads to greater democratic legitimacy of decision-making. 6 Transparency generally allows citizens to participate in decision-making and to better hold the EU institutions to account, which is especially relevant when EU institutions act in their legislative capacity. 7
The concrete way in which Union institutions ought to implement the value of transparency into their practices, is specified in secondary law, most importantly in the Access to Documents Regulation 1049/2001. Whereas this Regulation prescribes openness as the default, it also contains a list of exceptions EU institutions 8 can invoke to refuse access to a document. For the purposes of this article, two of those exceptions are particularly relevant, both of which are placed amongst the most strongly worded exceptions in the Regulation. EU institutions are under an obligation – rather than having a right – to refuse access to a document, where disclosure of the document would ‘undermine’ the public interest as regards ‘international relations’, or undermine the public interest as regards ‘defence and military matters’. In addition, the exceptions do not allow for a balancing test, weighing the benefits of withholding the document against a potentially overriding public interest in disclosure, unlike the exceptions listed in Articles 4(2) and (3) of the Regulation. 9
This article argues that the fundamental right to access documents held by EU institutions, bodies and agencies, is under pressure as a result of the continuously increasing scope of the EU's international activities. 10 The expansion of EU competences in the field of external relations means that more and more documents that concern citizens’ daily lives can potentially be withheld from the public by invoking either the international relations exception, or the defence and military matters exception. This development makes it worthwhile to take a critical look at the rationales of these particular exceptions, so as to avoid overuse of the exceptions and a resulting impairment of the right to access documents. In this light, it is crucial that EU institutions apply these exceptions strictly, and state specific and understandable reasons when they decide to refuse access based on these exceptions. When the institutions fail to do so, the Court of Justice of the European Union (CJEU) plays an important role in providing an effective legal remedy against abuse. Not only can the CJEU order the disclosure of documents, but the courts are also in a privileged position to review the concerned document and assess whether the given rationale matches the content of the withheld document.
Yet, as this article argues, analysis of the CJEU's case law shows that the courts leave a dangerously wide margin of discretion to EU institutions in applying the international relations exception, while neither the scope of nor the rationale(s) for relying on the exception are carefully scrutinized. Simultaneously, the use of the defence and military matters exception has not been challenged yet before the CJEU. As a result, EU institutions themselves become the guardians of what the general public may and may not know about the EU's external relations. With little protection offered by the CJEU, EU citizens and civil society organizations can only rely on the complaints procedure before the Ombudsman, 11 or on applying continuous public pressure on EU institutions to increase transparency. This has negative repercussions not only for the participation of EU citizens in EU decision-making, but also for the legitimacy of the Union as a whole. The saga around the secrecy of negotiations for the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US is a noteworthy example of the negative effects of secrecy for the reputation of EU institutions and, paradoxically, their ability to be an effective player on the international scene.
This article proceeds as follows. Section 2 briefly discusses the historical expansion of the EU's competences that relate to external action. The third section discusses the rationales that underly the international relations exception, as well as its application in case law of the CJEU and the Ombudsman. This section analyses these rationales by outlining the main types of documents that are relevant for the international relations exception, such as negotiating directives, textual proposals for international agreements and preparatory documents for negotiations. Then section 4 moves to the defence and military matters exception, and outlines the rationale for secrecy apparent in this exception, as well as the (few) cases before the Ombudsman in which this exception was applied. In section 5, the argument is developed that secrecy in external affairs can itself also undermine the public interest in international relations when it concerns policy areas that necessarily touch upon legislative matters that concern citizens directly, but do not constitute key strategic interests. Section 6 concludes.
The expansion of EU competences in the field of external relations
It is fair to say that the days that EU external action was limited to negotiating tariff concessions with third states are long behind us. Originally, the Treaty of Rome of 1957 granted the then European Economic Community (EEC) few explicit external powers. The EEC had the power to conduct a common commercial policy and establish trade relations with third states, as well as the power to conclude association agreements with third states. Over time, competences in the realm of external relations have expanded into many international aspects of other EU policy areas. This includes, to name a few, transport policy, environmental and climate policy, social policy, public health, data protection, human rights, development cooperation, fisheries, taxation, migration, education and culture, and police and judicial cooperation. This often includes the power to establish and maintain relations with third states and international organizations, conclude international agreements and take part in the decision-making of international organizations (and binding the EU and its Member States through such decision-making). What is more, the EU has since the Treaty of Maastricht (1992) a Common Foreign and Security Policy (CFSP) that includes since the Treaty of Lisbon (2007) the Common Security and Defence Policy (CSDP).
Historically, it is important to highlight that many of the expanded competences in the field of external relations have been granted to the EU shortly before or after the adoption of the Access to Documents Regulation in 2001. First, the CFSP was only formally included in the Treaty of Maastricht, which entered into force in 1993. Although the incremental development towards formalized cooperation in this field had been taking place for decades already, 12 the formal inclusion in the Treaties, as well as the later abolishment of the CFSP as a separate pillar by the Lisbon Treaty (2009), have contributed to the ‘normalization’ of the CFSP as a part of EU law, gradually losing its more intergovernmental character. 13 Secondly, the EU has in recent years sped up integration surrounding its Common Security and Defence Policy (CSDP). The CSDP provides the Union with an operational capacity drawing on military assets of the Member States. The war in Ukraine has accelerated integration in this field, for instance evidenced by the recent Regulation on supporting ammunition production, 14 or the considerable expansion in the funding 15 of the European Peace Facility. 16 Thirdly, the same goes for several other EU policy areas that have only been established or developed an external relations component more recently, such as migration and data protection. For instance, while the EU did include provisions for migrant workers in association agreements with third countries, the EU only gained external competence in the Area of Freedom Security and Justice with the Treaty of Amsterdam. 17 The EU has express external powers to conclude readmission agreements with third states and agreements on asylum cooperation since the Treaty of Lisbon. 18 Another example is the relatively recent phenomenon of ‘adequacy decisions’ under the General Data Protection Regulation (GDPR) by the Commission that enable the transfer of personal data to third countries.
In addition, several of these external powers have expanded significantly since the adoption of the Access to Documents Regulation in 2001. For instance, in the area of trade, the EU's competences have expanded considerably with the treaties of Nice (services) and Lisbon (foreign direct investment). What is more, EU policy in these areas has expanded and transformed considerably since then as well. EU trade agreements with third countries are no longer solely about reducing tariffs on imported goods, but focus more on addressing non-tariff ‘barriers to trade’ and facilitating foreign investment through instruments such as regulatory cooperation and investor-state dispute settlement. These trade agreements increasingly contain measures that can impact a large variety of public interest measures such as health and safety standards or measures that seek to reduce the emissions of greenhouse gas emissions. 19
Given the increasing importance of EU external action, and the expansion of competences and policy initiatives in this field, EU institutions hold more and more documents falling within the realm of external action that affect citizens’ daily lives. This makes it increasingly relevant for citizens to be able to access documents related to external relations, likely even more so than envisaged at the time of the adoption of the Access to Documents Regulation, which has not been revised since its adoption in 2001. Yet the current practices of transparency of EU institutions, which are guided by the CJEU's interpretation of the relevant exceptions in the Access to Documents Regulation, do not reflect the relevance of transparency in this field, as the subsequent analysis intends to show.
The ‘international relations’ exception (Article 4(1)(a) third indent of Regulation 1049/2001)
To assess whether the current application of the principle of transparency in the EU fits the increased role of EU external action, it is important to grasp the underlying reasons for treating documents pertaining to ‘international relations’ as an especially sensitive category of documents. The choice of the Union legislator to withhold access to information for the general public more in the realm of international relations than in other areas is not immediately obvious, and the relatively succinct preamble of Regulation 1049/2001 does not shed light on this choice either.
Part of the explanation can be found in the traditional attitude of states to conduct their foreign relations and diplomacy secretly. 20 This is particularly true for clandestine activities such as spying and intelligence work. Moreover, how states obtain information about strategic matters, like the military capabilities of other (rival) states, and this information itself, is generally of such a nature that states do not want other states to know what they know, and how they came to know it. This classic paradigm forms the background of the general acceptance of international relations as a particularly sensitive category of documents. Even the European Parliament's position in the committee phase of the legislative procedure for the Access to Documents Regulation seems to reflect this paradigm, stressing that ‘only those [documents] containing information that could risk lives, military operations or sensitive information with third countries, international organizations or negotiations, can be fully or partially, excluded from public access, after a case by case examination.’ 21 The extent to which this classic paradigm is applicable to EU institutions and thus serves to inform the logic of the ‘international relations’ exception, can however be debated. After all, the EU is not a state, and its competences in the field of security and defence remain limited. Moreover, there is a separate exception for ‘defence and military matters’, which will be discussed in section 4.
To properly understand and critically assess the rationales for secrecy in the realm of the EU's international relations, recourse must therefore be taken to the actual reasons presented by EU institutions for withholding access to documents in this field. This section aims to spell out and reflect on these rationales presented by EU institutions and where possible include the assessment of them by the CJEU or the Ombudsman. First, we present the general considerations in light of which the legal review of refusals to disclose information takes place. Then, the two most employed rationales for secrecy are discussed. EU institutions have reasoned primarily that the Union's international relations would be undermined in case disclosure of a document either (i) reveals strategic objectives or tactical considerations of the EU; or (ii) damages a climate of confidence or the mutual trust between the Union and an external party.
Although these reasons sometimes merge in the formulation of the CJEU or the concerned institution, this article discusses them separately to develop a proper analysis of their logic and application. Subsections within the discussion of these reasons are structured on the basis of a selection of the most relevant types of documents that have been withheld or disclosed in the context of the international relations exception. This structure reflects the fact that the legal acceptability of any rationale is dependent on the specific nature of the document in any given case. For instance, a document held by the Commission that it has received from a negotiating partner cannot reveal ‘tactical considerations’ of the Commission itself. Similarly, disclosure of documents pertaining to the implementation of an international agreement that has already been negotiated cannot negatively affect the ‘climate of confidence’ between negotiators to those agreements, since negotiations have already been concluded. On the other hand, an internal document outlining key objectives as to how to obtain energy security in relation to a third country may do so. 22 Given the increasing importance of transparency in EU external relations, it is important that any reasons for withholding (parts of) a document presented by EU institutions are consistent and understandable, while the CJEU should scrutinize these reasons strictly.
Preliminary considerations employed by the CJEU
Before discussing the rationales for secrecy in the realm of external relations, it is important to recall the basic test employed by the CJEU. The General Court (GC) and Court of Justice (ECJ) both review challenges to a refusal of disclosure in light of the general principles of the Access Regulation: the right of access should be ‘as wide as possible’, and the exceptions specified in the Regulation ought to be ‘applied strictly’. 23 Therefore, ‘the mere fact’ that a document ‘concerns’ the public interest as regards international relations ‘is not sufficient to justify the application of that provision’. 24 Institutions relying on an exception such as the international relations exception therefore ought to ‘explain’ how disclosure of the requested document could ‘specifically and actually’ 25 undermine the public interest as regards international relations and such a risk must be ‘reasonably foreseeable and not purely hypothetical’. 26
However, the ECJ also notes that the international relations exception is one of the mandatory exceptions listed in Article 4(1) of the Access to Documents Regulation, which protect interests that are of a ‘particularly sensitive and essential nature’. 27 Institutions should handle these cases with particular care and no balancing act with an ‘overriding public interest in disclosure’ can be made, in contrast to the other exceptions mentioned in the Access Regulation. 28 The CJEU often recall that the mandatory exceptions are worded in ‘very general’ terms, leading to a ‘wide discretion’ for institutions to determine whether disclosure of a document would indeed fall within the scope of an exception. 29 Given this wide discretion, the CJEU limit their own review of decisions by institutions to procedural elements, the duty to state reasons, the accurate stating of facts and whether there has been a ‘manifest error of assessment or misuse of powers’. 30 The ECJ has further explained this by referencing the fact that in the preparatory documents of the Access Regulation, numerous proposals to narrow down the wording of the mandatory exceptions and thereby increase the level of judicial scrutiny were not accepted. 31
In short, despite the fact that EU institutions are relying on an exception when withholding access to documents based on the public interest as regards international relations, they enjoy ‘wide discretion’ when doing so. In essence, therefore, an EU institution is required to state how disclosure of the requested document could ‘specifically and actually’ undermine the public interest as regards international relations, while that risk must be ‘reasonably foreseeable and not purely hypothetical’. Despite the wide discretion EU institutions have in explaining how the public interest as regards international relations would be undermined by making a document public, the EU institutions cannot decide to withhold access to a document simply because it concerns the public interest as regards international relations. A case-by-case assessment therefore must be made whereby the EU institution must explain why disclosure of the requested document would undermine the public interest as regards international relations. In other words, an EU institution needs to provide a convincing rationale why disclosure of a document undermines the public interest as regards international relations and it needs to do so in a concrete manner for the document in question.
Revealing strategic objectives and tactical considerations
One of the most important rationales EU institutions present as a reason for withholding documents is that the document at hand contains strategic objectives and tactical considerations that should remain secret. This rationale is peculiar to the realm of external relations, since it is specifically meant to keep information out of the hands of an external actor, 32 normally a third state. This external party does not necessarily share the political goals and values of the Union, or could even be considered a rival or enemy. Since transparency to the public necessarily implies that such adversaries are also able to access and benefit from disclosed information, transparency becomes a more complicated matter in external relations than in purely internal situations. This dynamic is apparent in any relation between the Union and an external actor where a ‘zero-sum’ logic is at play, meaning that the gains of one party can be viewed as the losses of the other.
Arguably, the most obvious context in which a zero-sum logic can be visible in general is in the realm of diplomatic discussions or negotiations for international agreements pertaining to defence and security matters, such as the Iran nuclear deal. Knowledge of strategic information, such as ‘red lines’, space for compromises, or tactical considerations, can potentially be abused by other actors to the detriment of the ‘transparent’ negotiating party. If the other party is, for example, aware of the minimal outcome the Union negotiator is willing to accept, it is unlikely that the EU will get more out of the negotiations, and transparency could result in worse outcomes for the Union and by extension the general public. The EU, of course, has traditionally been an organization that has concerned itself more with soft power issues rather than the hard power contexts in which this logic is most apparent. Nevertheless, the logic of the rationale is frequently invoked by EU institutions.
An important consideration is that the degree to which a zero-sum logic is at play is partly dependent on the policy area in which negotiations takes place. For example, negotiations on military and geopolitical matters are typically more characterized by zero-sum thinking than international environmental issues, where shared goals and shared gains are more obvious and cooperation is mutually beneficial. International environmental agreements seek to find solutions to shared (transboundary environmental) problems and typically do so by employing instruments of cooperation, exchange of information, reporting and monitoring. When parties seek to agree on collaboration for issues such as transboundary shipments of waste or living modified organisms, the relationship of parties is that of positive-sum, rather than zero-sum. Such negotiations often take place in the form of conventions that are accessible to the public, with a high degree of transparency on the respective levels of ambition of all parties concerned. A high-profile example is the Paris agreement and subsequent conventions governing its implementation. The Ombudsman has similarly emphasized in its decision Nord Stream 2 pipeline that the requested documents in question (negotiating directives for an agreement with Russia on a gas pipeline) were drafted in the context of negotiations [that] relate to a key strategic interest, namely energy supply and security. It is of vital importance for the EU, the Member States, and its citizens, that the institutions are not in any way undermined in such negotiations, by the release of sensitive documents at a crucial point in time. The Ombudsman contrasts this situation with negotiations aimed at entering into general trade agreements, where a high degree of transparency is appropriate.
33
Given the expansion of the EU's competences and actions in external relations, and the resulting increase in importance for citizens to access documents related to these fields, the approach suggested by the Ombudsman seems more in line with the objectives of transparency in EU law than the current approach adopted by the CJEU. Especially in areas that can be characterized as having a positive-sum logic, the rationale of protecting strategic objectives or tactical considerations cannot be automatically accepted without scrutiny. The remainder of this section attempts to concretize this observation by discussing several types of documents specific to the realm of EU external action, and assess whether this rationale might warrant refusing access to such a document. The order of discussion reflects the chronological order of the production of the documents, to give an idea about at what stage of negotiations the document is typically drawn up.
Negotiating directives
When the Council authorizes the Commission to represent the Union in negotiations for international agreements, it issues negotiating directives to outline the scope and content of the envisaged agreement. Negotiating directives are not only of interest to negotiating partners, but often to the EU public as well, in particular where international agreements may have an impact on health, environmental or consumer standards, such as modern trade and investment agreements. 36 As a result, their disclosure has been subject to considerable debate in the context of the negotiations for the Transatlantic Trade and Investment Partnership. These growing public demands for more openness, and a decision taken by the Ombudsman, have led to a shift in policy in relation to trade agreements by the EU institutions. The Commission now more proactively informs the public during the negotiation process rather than keeping the negotiation process entirely behind closed doors and merely publishing the end-result of negotiations. The Commission has committed to publish its recommendations for negotiating directives and initial EU textual proposals. This policy shift is further discussed and analysed in section 4.
Still, the Council has in the past withheld public access to negotiating directives on grounds that these documents may reveal strategic objectives or tactical considerations of the EU. In Besselink, Dutch constitutional law professor Leonard Besselink challenged a Council decision withholding access to a draft Council decision authorizing the Commission to open negotiations on the EU's accession to the ECHR. 37 The Council feared that disclosure of the requested document would reveal the EU's strategic objectives and the limits of its willingness to compromise, and refused access on the basis of the international relations exception.
The GC found that the positions taken by the Union are, by definition, subject to change depending on the course of those negotiations and on concessions and compromises made in that context by the various stakeholders. The formulation of negotiating positions may involve a number of tactical considerations on the part of the negotiators, including the Union itself. In that context, it cannot be precluded that disclosure by the Union, to the public, of its own negotiating positions, when the negotiating positions of the other parties remain secret, could, in practice, have a negative effect on the negotiating capacity of the Union.
38
Besselink shows that where EU institutions do not wish to disclose such (drafts of) negotiating directives, the Court is willing to accept the rationale that disclosure undermines the public interest as regards international relations, because these documents may reveal strategy and tactical considerations. A closer look at those negotiating documents themselves, however, shows very little information that can reasonably be characterized as ‘strategic’ or containing any form of tactical considerations. Rather, these directives contain a list of elements that the agreement should cover. 40 Negotiating directives usually contain information on the desired nature (e.g., trade liberalization) and scope of the agreement (e.g., sectors covered). They also outline in general terms what the content of the agreement should be with instructions for the preamble and general principles, objectives (e.g., ‘the Agreement should aim to provide for an effective and state-of-the-art investor-to-state dispute settlement mechanism’), and the several subject matters to be included in the agreement (e.g., trade in goods, services, investment, non-tariff barriers, intellectual property right protection, trade and sustainable development) as well as directives for institutional matters. This information is necessarily revealed to the negotiating partner as soon as the scope and nature of the agreement under negotiation is being discussed. Furthermore, the Court has specified that the Council cannot ‘bind the negotiator’ through ‘detailed negotiating positions’. 41 As a result, these directives are generally worded and give the Commission significant room for manoeuvre. It is therefore difficult to see how disclosure of those directives could negatively affect the EU's negotiating position.
Moreover, it is remarkable that the GC was willing to accept the argument concerning strategic objectives even in the realm of negotiations for accession to a human rights treaty. Given the importance of human rights to the general public, and the positive-sum logic of the policy field, one might have expected that any argument based on tactical considerations was scrutinized more strictly.
The fact that the GC in Besselink was nonetheless willing to accept that disclosure of negotiating directives could reveal strategic information and negotiating tactics, demonstrates how wide the discretion given to EU institutions is when they defend a refusal to access based on the international relations exception. This is unfortunate, given the considerable public interest in accessing negotiating directives in an early stage. They function as the formal launch of negotiations and contain information on the scope of the negotiations. As such, they are particularly relevant for citizens and public interest groups who want to participate in decision-making and hold decision-makers to account in particular where it concerns members of the Council issuing such directives. This is particularly important given the lack of transparency in deliberations and voting for such documents under the Council Rules of Procedure. 42
Textual proposals, consolidated texts and documents not produced by EU institutions and strategy and tactical considerations
As soon as a mandate has been issued, the EU negotiator will seek to find common ground with its negotiating partner(s) by making textual proposals or responding to such proposals. These documents can consist of initial textual proposals of the EU, initial textual proposals of a negotiating partner or consolidated texts. It is understandable that EU institutions are not keen on disclosing a complete version of the envisaged outcome of the text before such negotiations actually take place, and want to remain in control over when to present their preferred outcome. On the contrary, textual proposals by the EU for negotiations of international agreements that have already been communicated to the negotiating partner cannot be withheld on the grounds that they contain strategic information or tactical considerations, analogous to what the GC ruled in Besselink. 43
The current policy of the Commission in relation to trade agreements is to disclose only the initial textual proposals of the EU, whereas textual proposals of the negotiating partner or consolidated texts are not published. The initial proposals for legal text by the EU show a remarkable similarity regardless of the negotiating partner involved, whether it is Australia, Myanmar, Indonesia, Mexico or South Africa. While such documents cannot contain strategic information as they originate or are made in conjunction with the negotiating partner, the CJEU has accepted that their disclosure may affect the mutual trust between the negotiators, 44 a rationale this contribution returns to in section 3.3 below.
Legal service documents on external matters, such as international agreements
The legal services of EU institutions can be involved in all stages of EU external relations policy. This is particularly so where the EU institutions take decisions that have legal effects, such as during the process of signature, provisional application, conclusion and implementation of international agreements. Their involvement is of considerable importance in EU external relations policy, as international agreements and decisions taken by bodies set up by international agreements which are binding on the EU need to comply with EU primary law. Ensuring the legality of such decisions is of particular importance in the context of EU external relations, given that a successful legal challenge to such a decision may negatively affect the relations with third countries or organizations. For instance, the EU institutions may be legally required to ask a third state to renegotiate an international agreement or even terminate it, in order to remedy incompatibilities. Moreover, in relation to trade agreements, Article 207(3) TFEU specifically makes the Council and the Commission ‘responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules’.
Particularly important legal issues for the EU institutions are competence (choice of the correct legal basis) and compatibility of a decision with primary law. In relation to compatibility, international agreements and Council decisions for positions taken in bodies set up by international agreements need to be compatible with the Charter of Fundamental Rights but also with the EU's autonomous legal order. Both competence and compatibility issues have featured prominently during the negotiations of international agreements in recent years. A notable example is the inability of Belgium to sign the Comprehensive Economic and Trade Agreement (CETA) due to concerns by the Walloon and Brussels regions over the compatibility of the investor-state dispute settlement (ISDS) mechanism with EU law. As a result, signature was delayed until the Belgian federal government committed to request an Opinion by the Court under Article 218(11) TFEU on the compatibility of the agreement with EU law.
The legal services of EU institutions therefore often produce documents that outline the choice for a correct legal basis of an international agreement, their compatibility with already existing internal rules, or even their (in)compatibility with the EU Treaties. What is noteworthy of these legal analyses is that they are internally oriented: they assess an international agreement on the basis of existing EU law. Such an analysis may be done on the basis of texts that are already in the public domain, for instance because the Commission has published an initial textual proposal. The EU institutions have conflicting practices as to the disclosure of such legal analysis. A striking example are the documents produced by the Commission and European Parliament legal services on the compatibility of investor-state dispute settlement (ISDS) mechanisms in EU trade agreements. Whereas the European Parliament disclosed its analysis, the Commission did not. 45
At first glance, the risk of revealing strategic objectives and tactical positions in the disclosure of documents containing such legal analysis appears rather abstract and hypothetical. The legal services do not concern themselves with strategic objectives or tactical considerations for negotiations but with legal analysis of texts of (draft) international agreements or decisions. Those draft texts themselves do not reveal strategic or tactical information as they are already known when they are communicated to or even jointly produced with the negotiating partner. Moreover, there is a separate exception in Article 4(2) second indent of the Access to Documents Regulation to protect legal advice. 46 Yet two access to documents cases, In ’t Veld v. Council and ClientEarth (ISDS), concern the very situation of an EU institution (partly) relying on the international relations exception to withhold access to documents drafted by its legal service.
In In ’t Veld v. Council, Dutch Member of the European Parliament Sophie in ’t Veld (ALDE) requested access to an opinion of the Council's Legal Service, the secrecy of which was considered detrimental for the EP's ability to effectively wield its powers of consent under Article 218 TFEU. 47 In this opinion, the Council Legal Service analysed the appropriate legal basis for an international agreement between the EU and the United States on sharing financial messaging data to combat terrorism. 48 One of the arguments presented by the Council for withholding this analysis was that disclosure would reveal ‘elements pertaining to the position to be taken by the European Union in the negotiations which could be exploited so as to weaken the EU's negotiating position’. 49 It further substantiated this claim by arguing that disclosing ‘controversy’ surrounding the choice for the appropriate legal basis could be used against the Union by other negotiating parties. 50 In ’t Veld disagreed with this reasoning, arguing that the choice for the appropriate legal basis is an objective matter of EU law, and discussion on this point could not possibly reveal strategic objectives or tactical considerations. 51
The GC acknowledged that certain passages indeed revealed the objectives the EU would pursue in these negotiations, namely where the specific content that the EU had envisaged was concerned, and thus accepted the Council's refusal to withhold these passages. 52 However, the Council did not make clear why the rest of the document, including the analysis of the appropriate legal basis, would harm the Union's negotiating position. To that effect, the GC stressed that ‘the risk of disclosing positions taken within the institutions regarding the legal basis for concluding a future agreement does not in itself establish the existence of a threat to the EU's interest in the field of international relations’, 53 and that ‘the mere fear of disclosing a disagreement within the institutions regarding the legal basis […] is not a sufficient basis for concluding that the protected public interest in the field of international relations may be undermined’. 54
The ECJ confirmed this reasoning in the appeal filed by the Council, while specifying that it is not impossible that disclosure of an internal debate on the legal basis of an international agreement can undermine the Union's public interest in international relations, the Court pointed out that such a debate does not automatically justify application of this exception. 55 The Council was not able to successfully make the case for secrecy, and was ordered to disclose the requested document, except for the parts that referenced the envisaged draft agreement. The judgment was received as a victory against ‘blanket institutional secrecy in the area of international relations’. 56 Still, the subsequent way in which the Council interpreted the rulings, by again publishing only a small part of the document, raised questions on how meticulously the Court's judgment was followed. 57
The second case in which documents containing legal analysis on an international agreement, in this case drafted by the Commission Legal Service, were withheld on the ground that disclosure would reveal strategic information and thereby hurt the Union's international relations, was ClientEarth (ISDS). Environmental NGO ClientEarth had requested several documents that were drafted for internal use, which presented a legal analysis of ISDS and the new Investment Court System (ICS) in light of CJEU case law on the autonomy of EU law. 58 At the time of the decision to refuse access to these documents, the Commission had approved and published its proposal for an Investment Court System in its negotiations over TTIP with the United States and it had completed the negotiations with Canada over CETA (that included ICS) and published the text of that agreement. In other words, disclosure of the textual proposal or the negotiated CETA text could not reveal strategic information. Similarly, information on well-known and publicly available provisions in international investment agreements, such as the International Convention on the Settlement of Investment Disputes (ICSID) could also not reveal strategic objectives.
The key to the case, therefore, was whether the legal assessment of this publicly available information by the legal service of the Commission could reveal strategic information. It is important to note here that only one of several documents withheld by the Commission was disclosed by the legal service to DG Trade, the department responsible for the negotiations. 59 Similar to In ’t Veld's claim, ClientEarth argued that disclosing this information could not weaken the Commission's negotiating position, as the Commission claimed, but simply offered an objective legal analysis. 60 Indeed, the role of the legal service is limited to ‘ensure that the law is respected, thereby contributing to upholding the rule of law’. 61 It is for this purpose that the Commission's Rules of Procedure require departments of the Commission to consult the Commission Legal Service for ‘all drafts or proposals for legal instruments and on all documents which may have legal implications’. 62 The role of the legal service is therefore not to give policy or strategic advice.
The GC disagreed with ClientEarth. It found that the documents did not contain ‘unbiased views on the law to be observed, but [the legal assessment] necessarily implies a thorough analysis of numerous legal, economic, political and strategic issues related to the choices that the European Union is required to make.’ 63 The documents were drafted in the context of internal discussions, which would inform the Commission on the appropriate position to take in several ongoing negotiations, 64 including negotiations with the US on TTIP. Apparently for that reason, the GC concluded, without further explanation, that the documents indeed ‘relate[d] to the specific content of [ISDS or ICS] mechanisms in the envisaged agreements and [that] their disclosure may reveal the strategic objectives pursued by the European Union in the negotiations’. 65
In appeal, the ECJ criticized the GC for its lack of specificity in concluding that strategic objectives would be revealed by disclosing the document. 66 The GC's review of the Commission's argument that a reasonably foreseeable risk existed was therefore considered insufficient. Still, the GC's judgment was not annulled, because the ECJ agreed with the Commission's reasoning that disclosure ‘would [have] weakened the Commission's negotiating position by giving to the Commission's negotiating partners an insider look into the European Union's strategy and negotiating margin of manoeuvre’. 67 It is remarkable that in the four paragraphs the ECJ spends on ‘rectifying’ the GC's lack of specificity, the Commission's reasoning is simply repeated, lacking a detailed explanation why this reasoning is sufficient to establish a ‘reasonably foreseeable risk’.
In short, In ’t Veld v. Council and the appeal in ClientEarth (ISDS) both confirmed that the GC and ECJ both accept that legal advice produced in the context of negotiations of an international agreement does not solely fall under the legal advice exception (Article 4(2) second indent of the Access Regulation), but that EU institutions can rely on the international relations exception as well. For the latter, EU institutions do however have to present a compelling reason of why disclosure of a specific element of the legal service analysis would ‘specifically and actually’ create a ‘reasonably foreseeable risk’ that the EU's negotiating position would be damaged before a document can be withheld. This reason cannot consist of the mere fact that the document concerns an international agreement under negotiation, or shows an internal disagreement on the legal basis question. However, if the legal analysis concerns the specific content of an envisaged agreement, a valid reason for secrecy is deemed to exist, even where the text has already been disclosed to the negotiating partner.
Preparatory documents for negotiations and reports of negotiations
It is not inconceivable that EU institutions also produce internal preparatory documents before rounds of negotiations with a negotiating partner. They may outline, for instance, where the EU is willing to compromise on tariff concessions or market access commitments in trade negotiations and when such compromises must be sought. These documents seem at first glance to particularly fit the rationale to withhold access on the basis that they may reveal strategy and tactical considerations, and could compromise the EU's negotiating position.
Interestingly, in accordance with the Commission's greater commitment to transparency for trade negotiations, the Commission has committed to publishing the agendas and reports of each negotiating round. This allows the public to understand the current state of negotiations, what is the subject-matter of the round of negotiations, where compromises have been found and where difficulties in the negotiations exist. The reason for the Commission's openness may not only show a greater commitment to transparency, but also that this type of information is not strategic or reveals tactical considerations as the negotiating partner equally knows this information. After all, since the international relations exception is part of the mandatory exceptions in the Access to Documents Regulation, a serious risk of undermining the Union's negotiating position should lead to withholding the document anyway. Hence, this practice underlines that the risk of revealing strategic considerations should not be accepted simply because of the fact that a document concerns an ongoing negotiation. Rather, an institution needs to properly substantiate why the document specifically would be a threat to the Union's public interest in international relations.
Positions to be taken before international bodies
The rationale that documents must be withheld because they reveal strategic objectives and tactical considerations that can undermine the EU's negotiating position is used predominantly where the EU is negotiating an international agreement. However, the EU may also find itself in international negotiations where it is part of discussions before international bodies set up by international agreements that implement an international agreement. A notable example is the Dispute Settlement Body (DSB) of the World Trade Organisation (WTO). Here, the EU might find itself negotiating mutually agreed solutions or mutually acceptable compensations with WTO members alleging non-compliance of WTO agreements by the EU. The ECJ itself has stated that the ‘WTO dispute settlement system […] accords considerable importance to negotiation between the parties’. 68
Accordingly, related documents can likely be withheld from the public where they would reveal strategic objectives and tactical considerations before international bodies where negotiations take place, such as in the context of the WTO's DSB. This may also be true for situations in which the EU is producing documents for negotiating a text of a decision to be adopted by an international body outside the WTO context. However, it should be noted that for the implementation of international agreements, documents produced by EU institutions are not necessarily part of ‘negotiations’, nor is the content necessarily ‘strategic’ or ‘tactical’. Many international environmental agreements contain (scientific) reporting obligations necessary for the proper monitoring of such an agreement. Documents containing such information are not part of ‘negotiations’ nor is their content ‘strategic’.
Where international agreements establish bodies that can be called upon to adopt acts ‘having legal effects’, the Council must take a decision on a proposal from either the Commission of the High Representative. 69 As a result, Commission proposals for such decisions and the decisions themselves are published, although the more stringent transparency requirements that are applicable for legislative procedures do not apply in such a situation. 70 A decision has ‘legal effects’ when it is capable of ‘decisively influencing the content of the legislation adopted by the EU legislature’ regardless of whether under international law the decision is a mere recommendation. 71
As this overview of several types of documents typically held by EU institutions in the realm of external relations shows, full disclosure of all of those documents could impair the effectiveness of the EU as a negotiator on the international stage. To that effect, the rationale of withholding documents to protect strategic or tactical considerations seems to justify withholding those documents that contain proposals not yet communicated to negotiating partners, especially in areas characterized by a zero-sum logic, such as defence. While the CJEU has at times set limits to the application of the international relations exception, most notably in Besselink and In ’t Veld v. Council, this section also shows that both EU institutions and the CJEU have proven to be willing to adopt this rationale when withholding documents the strategic value of which appears questionable or even hypothetical. Examples include negotiating directives for human rights treaties, or legal advice on existing ISDS mechanisms, as seen in the rather restrictive judgment ClientEarth v. Council (ISDS). For such documents, application of the international relations exception seems to unnecessarily restrict transparency.
Protecting a climate of confidence or the mutual trust between the Union and an external party
The second commonly used rationale for secrecy is that disclosure of the document would damage a climate of confidence or the mutual trust that exists between the Union and its international partners. The Union is, as explained in section 2, an increasingly active player in the international arena, and needs to uphold quality relations with a wide range of third states and international organizations to effectively carry out its tasks. According to Article 21(1) TEU, for example, the Union ‘shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations’ and ‘shall promote multilateral solutions to common problems’. The exclusive competence to develop a common commercial policy 72 is still regarded as the most important element of the Union's external relations. 73 In this area, and similar other areas, the Union needs to be perceived 74 as a reliable and constructive negotiating partner for external parties.
An important aspect of gaining a solid reputation in this regard is to respect the climate of confidence in negotiations of international agreements. Especially when it concerns information that external parties have confidentially shared with the EU, disclosure of that information could potentially harm the relations with that party, and make this actor less willing to conduct negotiations or cooperate in general with the Union, resulting in worse outcomes for the general public. To this effect, the ECJ has specified that the way in which external parties, like third countries, perceive the decisions of the EU is a component of the international relations of the Union. 75 If a decision to disclose information is likely to hurt the confidence or trust of the authorities of a third country, the international relations exception can be invoked to prevent this from happening, and keep the relations between the Union and this third country intact. The ECJ has also emphasized that negotiations in particular require mutual trust between negotiating parties ‘to ensure the effectiveness of the negotiation’. 76
This rationale for non-disclosure thus follows a different logic than the argument that disclosure would reveal strategic objectives or tactical considerations, mainly because the zero-sum logic is less apparent in the context of ensuring mutual trust or a climate of confidence. Sharing confidential materials is deemed to smoothen the talks, while an attitude of distrust likely leads to worse outcomes for both parties. Still, the difference in policy areas described above between negotiations on ‘key strategic interests’ and negotiations around more cooperation-based areas like environmental issues, is relevant in assessing the appropriate degree of transparency. It is more likely that an external party expects secrecy from the Union in realms that are sensitive and potentially dangerous for its national security, than when a general trade agreement or environmental convention is drafted. This is also reflected in the fact that negotiations concerning environmental agreements are characterized by a high degree of transparency, which does not hinder the effectiveness of these discussions. We now turn to a selection of types of documents to assess the relevance of and possible reliance on the rationale that the protection of a climate of confidence or mutual trust requires application of the international relations exception.
Confidential intelligence received by external parties and held by EU institutions
The CJEU has accepted that information shared confidentially by an external actor can be withheld with reference to the international relations exception. An early example in the case law is Sison, in which the GC held that international cooperation to combat terrorism ‘presupposes confidence in confidential treatment accorded to information passed on to the Council’ and that disclosing such information could put the EU in jeopardy, because third countries would consequently be less willing to share their intelligence with the EU. 77 The GC thus stressed the sensitivity of this policy area which contributed to the justification of secrecy. 78 This part of the GC's ruling was overturned in appeal, but not because the reasoning of the GC was flawed. In fact, the documents at hand did not come from third countries, but from Member States, which rendered this consideration irrelevant for the case at hand. 79 Nevertheless, the reasoning of the GC shows deference to the argument that confidential intelligence shared in sensitive policy contexts can be withheld by using the international relations exception.
Documents received by external parties in the context of the implementation of international agreements
The Access to Documents Regulation in principle does not distinguish between documents that EU institutions have received from external actors, such as the authorities from third countries or international organizations, and documents that EU institutions themselves have produced. 80 However, according to Article 4(4) of the Access to Documents Regulation, institutions are asked to consult the third party that delivered the document in case doubt exists on whether one of the exceptions to transparency applies. The nature of this consultation was further clarified in the Bronckers case. 81 The Commission was asked to disclose documents drafted by a Mexican non-profit organization that was accredited by the Mexican government to oversee the implementation of a 1997 EU-Mexico agreement on the mutual recognition and protection of designations for spirit drinks. The Mexican authorities that were consulted by the Commission disagreed with disclosure, mainly by raising the argument that this could hurt commercial interests. 82 The GC acknowledged first of all that the wishes of the third party do not in any way bind the institution which must decide on a request for access. 83 The Commission in this case thus had to assess the request in light of the rules of the Access to Documents Regulation and could not automatically discard it. 84 The Commission took into account the content of the document, as well as the Mexican authorities’ opposition to disclosure, and came to the conclusion that disclosure could be viewed by the Mexican authorities as a breach of trust, potentially frustrating the operations of the Committee set up to implement the Agreement, 85 and therefore the international relations exception should be applied. Although the Commission did not base its refusal to disclose on the same ground as the Mexican authorities did (namely the protection of commercial interests), the GC still accepted the reasoning of the Commission, since it did not merely draw on the Mexican opposition but also considered other factors. 86 Nevertheless, Bronckers shows that although opposition to disclosure from a third party cannot automatically lead to a refusal to withdraw, this factor can play an important role in the subsequent assessment made by the institution, and thereby justify reliance on the international relations exception.
This logic equally applies to documents received from an international body overseeing the implementation of an international agreement. 87 The Ombudsman has for example allowed the Commission's refusal to disclose a note laying out the preliminary position of the World Customs Organisation (‘WCO’) regarding the classification of smartphones. The WCO objected to releasing this document to the public before the final decision, and necessary redactions were made. 88 The Ombudsman agreed with the Commission that breaching the requested confidentiality of the document would violate WCO rules and hurt the EU's diplomatic relations between the EU, the WCO and its members. 89
Documents containing the Union's own stances in ongoing rounds of negotiations
Not only documents that emanate from external parties themselves can potentially be withheld by EU institutions in order to protect the mutual trust between the Union and a third party, but also documents produced by EU institutions themselves. This was made clear by the GC in In ’t Veld v. Commission. MEP In ’t Veld argued in this case that disclosing positions the Union had taken in a round of ongoing negotiations as the other negotiating parties were naturally already aware of these stances, should be made public. While the first rationale of protecting strategic objectives or tactical considerations would not work here, 90 the GC disagreed with In ’t Veld. The main consideration the Court employed was that the Union's positions ‘could reveal, indirectly, those of the other parties to the negotiations’. 91 Even if the positions of other parties appear to be anonymous, disclosure ‘may be likely to seriously undermine, for the negotiation party whose position is made public and, moreover, for the other negotiating parties who are witnesses to that disclosure, the mutual trust essential to the effectiveness of those negotiations’. 92 In the subsequent review of the specific documents the Commission withheld, the Court agreed with the withholding of all documents where the positions of other parties were referred to. 93 The difference with Besselink, in which the Court disallowed withholding documents that contain stances of the Union which are already communicated to other negotiating parties, is that the relevant document in that case was drafted before any actual negotiation took place, making it impossible that the positions of other negotiating parties could be derived from the document. In In ’t Veld v. Commission, the Court showed a particular sensitivity to the rationale of protecting the climate of confidence in negotiations. 94 This sensitivity might run counter to the objectives of transparency, especially when the EU continues to expand its role on the international stage and becomes involved in more and more negotiations that could affect citizens’ daily lives.
Confidential agreements with external parties
Not all agreements that the EU concludes are released in full to the general public. A refusal to disclose such an agreement can be based on one of the exceptions laid out in Article 4 of the Access to Documents Regulation, but then has to satisfy the particular requirements of that exception, even in cases where the EU has promised the external party confidentiality. 95 The CEE Bankwatch case concerns such an agreement that was not fully disclosed, and later became the subject of an access to documents request, namely the 2013 Loan Facility Agreement between the European Atomic Energy Community (EAEC), represented by the Commission, and Ukraine. 96 The Commission had only granted partial access to the Agreement, and relied on the international relations exception in making its redactions. It argued that disclosing the entire Agreement would hurt the relations with Ukraine, a ‘strategic partner’ of the Union, and thus have a ‘negative diplomatic impact’. 97 According to the Commission, hurting these relations would be specifically problematic because that would undermine efforts to achieve the safety of nuclear power plants close to the territory of the EU. The GC accepted the Commission's reasoning, mainly because the Agreement contained commercially sensitive information on Energoatom, a State-owned enterprise, the disclosure of which may hurt the quality of the relations with Ukraine. 98 Since nuclear safety can be considered a ‘key strategic interest’, as was hinted at by the GC, 99 it is understandable that details of agreements such as this Loan Facility Agreement can be withheld using the international relations exception.
Internal records on or internal analysis of events in third countries
The scope of application of the rationale for withholding documents on the basis of protecting a climate of confidence or mutual trust between the EU and external parties is not limited to confidentially received information or the realm of negotiations. The EU also holds internal records on matters that can be particularly sensitive to a specific third country, the disclosure of which could potentially damage the relations with that country. The most important example of the withholding of an internal document for this reason, is the case Jurašinović. 100 During the Croatian War of Independence in 1995, observers from the (then) European Community drafted reports documenting the events in the area of Knin. When asked to release these reports fourteen years later, the Council was reluctant to do so, in part because this could turn problematic for the relations between the EU and the different parties to the conflicts in former Yugoslavia. 101 Even though the events took place over a decade ago, the GC found that the contents where so sensitive as to be ‘capable of giving rise to or increasing resentment and tension among the different communities of the countries which had been parties to the conflicts in former Yugoslavia or between the countries formed from Yugoslavia, thus weakening the confidence of the Western Balkan States in the process of integration.’ 102 It concluded that for that reason, disclosing ‘comments or assessments concerning the political, military and security situation at a decisive stage of the conflict between Croatia and Federal Yugoslav forces’ would undermine the Union's international relations and thus should not be disclosed. This reasoning was not challenged in the appeal. 103
The Ombudsman has dealt with a number of similar cases, where internal EU records on events in third countries were not disclosed by EU institutions on the basis of the rationale that releasing these records would undermine the trust of that external party and by extension hurt the EU's diplomatic activities. One example is the refusal by the European External Action Service to fully disclose a note on the Amulsar Mountain mining project in Armenia, which has been controversial due to environmental concerns. The note, meant to inform EU representatives, contained ‘politically sensitive information’, and would undermine relations with stakeholders in Armenia, according to the EEAS. The Ombudsman reassured the applicant that the redacted parts did not contain environmental information, and agreed that the sensitivity of the redacted elements was of such a nature as to justify keeping its contents secret. 104 Other examples include documents that contain positions voiced by Member States in confidential EU meetings, such as documents on a Council Working Party in which Member States voiced their confidential opinions on sanctions on Iran, 105 and ‘briefing notes’ held by the Commission containing an assessment of Israel's internal affairs and Member State opinions on this matter. 106 The Ombudsman ruled in both cases that disclosure would undermine the relations between the EU and the external party involved.
The internal records the EU holds on the situation in third countries is specifically sensitive in the context of states that aim to accede to the EU. The Ombudsman has in this context dealt with an access to documents requested related to internal records on Albania, which is officially a candidate for entering the EU since 2014. One of the conditions for acceding to the Union, is that the legal system of the country involved is in accordance with EU law. In order to foster the Albanian legal system's compliance with Union law, the Commission funds EURALIUS, a project meant to improve and consolidate the Albanian justice system. 107 EURALIUS drafted an internal report on the protection of property in Albania, which was the subject of an access to documents request. The Commission argued that the report was a part of the accession process of the EU, which requires ‘open and frank’ dialogue, for which an ‘environment of mutual trust’ is necessary. 108 The Ombudsman agreed that fully releasing this report would show ‘sensitive information on the shortfalls in the Albanian justice system’, could hurt the necessary mutual trust in the accession process, and agreed with the refusal to share the entire report.
Similar to section 3.2, this section showed that the rationale of protecting a climate of confidence can justify refusing access to some documents, especially those concerning sensitive or zero-sum policy areas, but that a lack of scrutiny regarding the invocation of this rationale runs the risk of overuse of the international relations exception. Disclosing confidential intelligence or documents shared with the Union on condition of secrecy could generally undermine the Union's interest in international relations, and seems in line with the original purpose of the exception. However, it remains important to identify whether the concerned policy area actually requires a high degree of secrecy, and whether key strategic interests are at stake. The distinction between such sensitive areas and other fields to which the rationale of requiring secrecy to protect a climate of confidence is less applicable, such as climate negotiations, is not yet made by the CJEU. This runs the risk of allowing the international relations exception to be invoked for documents that the public should be able to obtain in light of the fundamental right to access documents.
The ‘defence and military matters’ exception (Article 4(1)(a) second indent of Regulation 1049/2001)
Although the EU has limited competences in the field of defence, it conducts a Common Security and Defence Policy that provides the Union with an operational capacity drawing on military assets of the Member States and therefore necessarily entails that the EU institutions hold documents that relate to defence and military matters. The war in Ukraine has accelerated integration in this field, for instance evidenced by the recent Regulation on supporting ammunition production, 109 or the considerable expansion in the funding 110 of the European Peace Facility. 111
Since this area touches upon particularly sensitive matters of national security, it is understandable that a separate exception for documents that undermine the Union's public interest as regards defence and military matters is listed in Article 4(1)(a) second indent of the Access to Documents Regulation. The release of information that contains information on, for example, Member State's defence capabilities, military strategies or specific forms of defence cooperation between Member States could benefit the Union's adversaries and potentially even put European citizens or soldiers at risk. The rationale for secrecy in this field is therefore evident and aligns with the classic paradigm of secrecy in international affairs that was sketched in section 2. An example of a policy in which documents circulate that could be covered by this exception is the relatively new European Defence Fund (‘EDF’), which has been operative since 2021 and which is formally a part of the Union's industrial policy. The EDF funds research and development of new defence products and technologies, the details of which are not shared with the public, since sharing those details would give external parties insights into the nature and innovative aspects of the projects, defying their purpose of increasing the Union's strategic autonomy 112 vis-à-vis external actors.
Interestingly enough, the Court records only include one applicant who has challenged the use of the defence and military matters exception by an EU institution before the CJEU. Missile manufacturer MBDA brought a case against the Commission before the GC in May 2023. 113 It concerns a denial of (full) access to documents on one of the EDF projects that deals with the protection against high-velocity air threats. The case is still pending at the time of writing. In contrast to the rich case law under the international relations exception, the courts thus did not yet have the opportunity to clearly outline the scope of the defence and military matters exception. This means that the Ombudsman is the only institution that has thus far reviewed a small number of appeals against an institution's invocation of the defence and military matters exception. Given that the Ombudsman respects the CJEU's interpretation of the Access to Documents Regulation, it reviews requests based on the general comments in CJEU case law on the exceptions listed in Article 4(1)(a) Regulation 1049/2001. This primarily means that the Ombudsman considers the ‘wide margin of appreciation’ or ‘wide discretion’ of the institution involved. 114 With no limits that can be derived from CJEU jurisprudence, in contrast with the international relations exception, the resulting review of the Ombudsman in cases where the defence and military matters exception is applied, is extremely limited in nature.
One of the cases in which the marginal review of the Ombudsman is visible concerns a request for access to a report of the High Representative on the status of Permanent Structured Cooperation (PESCO). PESCO is a recent initiative that provides a framework for Member States willing to cooperate on a more committed basis in the field of defence, and works through several projects that Member States can opt-in at will. 115 The Ombudsman found that the document in this case contained ‘sensitive defence and military information throughout’, and it was therefore ‘reasonable’ for the EEAS to argue that hostile external parties could obtain strategic cues to effectively counteract the EU's defence efforts if they were able to access this information. 116 The reviews of the Ombudsman are generally even more limited in scope, because a link to military information seems to almost automatically justify the application of the defence and military matters exception. Similarly, the Ombudsman has allowed the refusal to share the troop contributions of individual Member States in CSDP missions abroad by the EEAS, 117 evaluations of projects funded by the EDIDP (European Defence and Industrial Development Project) on their compliance with international law, 118 a note setting out the priorities of the EU's military capability development in the CSDP area, 119 and minutes of working bodies of the European Defence Agency in which technical experts discussed upcoming actions and plans of Member States and defence companies. 120 Only when the content of the document does not contain any sensitive strategic information has the Ombudsman invited the institution to revisit their rejection based on the defence and military matters exception. This happened, for example, in a case concerning correspondence between the Commission and industry lobbyists regarding the sanctions against Russia, which the Ombudsman found had nothing to do with defence and military matters. 121
How secrecy itself could undermine the Union's public interest in international relations
The international relations exception and its interpretation suggest that the public interest as regards international relations benefits from secrecy. However, as recent events and subsequent practice of EU institutions in the area of trade and investment policy have shown, the opposite can be the case too: secrecy can, in fact, undermine the public interest as regards international relations. This is the case, for instance, where secrecy undermines both the effectiveness and legitimacy of EU institutions to such a degree that its capacity to conclude international agreements is weakened. The negotiations of the Transatlantic Trade and Investment Partnership (TTIP) and the Anti-Counterfeiting Trade Agreement (ACTA) came to a standstill, in part as a result of the secrecy that surrounded the negotiations that damaged the legitimacy of the Commission and the public support of the negotiations in the Member States. As a result, the EU institutions and particularly the Commission, have made a considerable turn on transparency policy during negotiations of trade agreements. The Commission now has a transparency policy that goes beyond what it is required by the CJEU to advance public acceptance of international trade and investment agreements.
The Commission's approach to the negotiations for TTIP had initially been traditional, even in the wake of the European Parliament's decision to decline consent to ACTA in 2012. It refused to grant access to the (draft) negotiating directives, negotiating positions, draft texts of the agreement, reports of negotiating rounds, or meetings with industry to public interest organizations and members of the public. 122 Gradually, this position shifted towards more openness, at the suggestion of the European Parliament. During the TTIP negotiations, however, the Commission still responded negatively to various recommendations made by the European Ombudsman in its own-initiative inquiry on TTIP. 123 As a result, the Commission became vulnerable to what Tienhaara has labelled ‘disruptive transparency’, where disclosure of documents is ‘intended to interrupt the secret flow of information within and among powerful institutions and ultimately to upset the existing social and political order’. 124 On 2 May 2016, Greenpeace successfully managed to bring the TTIP negotiations to a complete halt by leaking a large amount of secret documents pertaining to the negotiations, including draft texts of the agreement. 125 The leaks followed years of campaigning by public interest organizations highlighting the secrecy surrounding the negotiations and the heightened interest of the public in the negotiations. Shortly thereafter, several government leaders in Member States called for the end of negotiations, citing concerns over the secrecy of the negotiations. 126
Currently, the Commission's transparency policy in trade negotiations is moving away from a model that can be labelled as ‘conventional transparency’ to something that is closer to a ‘deliberative transparency’ model. 127 Rather than merely focusing on facilitating accountability of decision-makers after decisions have been taken, this model seeks to facilitate deliberation and participation in decision-making during and before the decision-making process. Before the launch of negotiations, the Commission has committed to systematically publish its recommendations for negotiating directives (those directives themselves, if issued, are a Council document). According to the Commission, this practice allows the public ‘to have a better informed view and to discuss issues of interest and concern right from the start of preparations for a negotiation’. 128 Yet despite these public promises, the Commission has not been true to its word for all of the trade agreements under negotiation. The draft negotiating directives of the EU-Mercosur agreement have not been disclosed by the Commission, nor has the Commission released the draft negotiating directives of a new side agreement to the EU-Mercosur agreement that is intended to strengthen its environmental credentials. The environmental impact of this agreement is by far the most controversial aspect of the agreement and of significant concern to the public and environmental organizations. Given that the goals of the Commission on enhanced transparency are to strengthen the legitimacy of its trade policy and to involve all stakeholders more, this is a noteworthy setback.
During the negotiations, the Commission publishes the EU's initial proposals for legal text, explanatory documents and reports of negotiating rounds. The initial proposals for legal text by the EU show a remarkable similarity regardless of the negotiating partner involved, whether it is Australia, Myanmar, Indonesia, Mexico or South Africa. This similarity highlights the lack of confidentiality of these documents as it demonstrates that the EU's negotiating position is essentially the same regardless of the negotiating partner.
The Commission is also committed to publishing a Sustainability Impact Assessment (SIA) before the end of the negotiations, although the European Ombudsman has found maladministration of the part of the Commission as recently as 2020 for failing to finalize and update an SIA on the EU-Mercosur trade deal. 129 It also engages in regular Civil Society Dialogue meetings and the Commission has created an Expert Group on EU trade agreements in order to improve participation of the public in the decision-making during the negotiating phase of the agreements. However, the Expert Group on EU trade agreements has already been disbanded in 2019 after it was set up in 2017.
The Commission does not publish consolidated and amended texts after initial textual proposals. This is still a considerable restriction in enabling participation of the public. While this can be explained by possible reluctance of negotiating partners to disclose this information, the Commission does not commit to agreeing with the negotiating partner or convincing it of the importance of disclosure of such texts. As the European Ombudsman stated in its TTIP inquiry: The right of EU citizens to have public access to documents held by EU institutions is a fundamental right aimed at ensuring that they can participate in EU decision-making and hold the EU and its institutions to account. This right deepens the democratic nature of the EU and its institutions. Responses to the Ombudsman's public consultation have made clear the importance that stakeholders attach to documents, such as consolidated texts containing EU and US positions.
The deliberative transparency model is in line with the rationale of EU transparency law. Recital 2 of the Access to Documents Regulation states: ‘Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.’ 131 The legal basis of the Regulation, current Article 15 TFEU, states that ‘in order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible’ an allusion to Article 1 TEU: ‘this Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.’ Article 11 TEU, in turn, also emphasizes the link between openness and ability of the public and civil society to participate in decision-making requiring EU institutions to maintain ‘an open, transparent and regular dialogue’ with civil society, carrying out consultations and giving the opportunity to ‘make known and publicly exchange their views in all areas of Union action’.
The peculiar procedure for the conclusion of international agreements under Article 218 TFEU further highlights the need for the Commission to be more open towards the public during the negotiation stage of an agreement. After negotiations have been finalized, the Council and (in most cases) the European Parliament are presented with a take-it-or-leave-it choice over the entirety of the agreement. This severely limits the public debate over the merits and pitfalls of the agreement as these institutions cannot amend specific parts of the text. The participation in the decision-making of these institutions the public and civil society is therefore much more limited than under other decision-making procedures if the Commission does not meaningfully engage with the public.
Conclusion
While the EU's activities on the international stage have expanded considerably over time, EU institutions draft, receive, and hold more and more documents within the realm of external relations that affect Union citizens’ daily lives. Yet the two most important exceptions that EU institutions can rely on to withhold that information are amongst the ‘mandatory’ exceptions listed in Article 4(1)(a) of the Access to Documents Regulation, meaning that EU institutions must refuse access to these documents if they consider disclosure to undermine the public interest as regards international relations and no overriding public interest in disclosure can be established.
It is therefore crucial that these exceptions are not interpreted in a way that gives an almost limitless freedom for EU institutions to withhold access to documents. Not only would an overly deferential interpretation of these exceptions impair the fundamental right to access documents, it would also significantly hinder the ability of EU citizens to participate in decision-making, and could even harm the effectiveness of the EU as an international player. To avoid these risks, EU institutions should proactively publish documents where possible and present clear and consistent reasons for any refusal to disclose (parts of) a requested document. Moreover, the CJEU should provide an effective legal remedy against abuse by scrutinizing these reasons carefully. Although the CJEU grants institutions a wide discretion to determine whether the application of one of these exceptions is justified, the courts should not forfeit their role in ensuring that the exceptions are ‘applied strictly’. Therefore, both EU institutions and the CJEU should base any (potential) refusals to access on the foundational logic and rationales that underlie the invoked exception.
To that effect, this contribution analysed the two main rationales for secrecy employed by EU institutions to justify application of the international relations exception: (i) a document could reveal strategic objectives or tactical considerations; and (ii) a document could damage the climate of confidence or the mutual trust between the Union and an external partner. While the former rationale hinges on the existence of a zero-sum logic within a particular negotiation, the latter follows the opposite assumption, namely that a climate of confidence can smoothen cooperation and lead to more positive outcomes for all parties involved.
Our analysis shows that despite the stakes involved, the CJEU generally applies a light-touch review of an EU institution's reliance on the international relations exception. First, the courts at times accept an intermingling of the two main rationales, 132 without regard for their seemingly contradictory logic. Secondly, even apodictic and barely substantiated refusals have been accepted, which does not push EU institutions to provide specific and consistent reasons when they invoke the international relations exception. This is problematic because, as shown in our analysis, several types of documents held in the context of external relations do not evidently fit the logic of either of the identified rationales. Thirdly, and most importantly, the CJEU fails to take into account a distinction that should inform the required scrutiny of the review of decisions withholding access based on either of the two rationales. As elaborated upon by the Ombudsman, the logic of withholding documents relating to a ‘key strategic interest’ differs widely from documents drafted in the context of ‘negotiations aimed at entering into general trade agreements’. 133 If a document contains particularly sensitive, strategic or secret information and a zero-sum logic is at play, for example in the sphere of military action, it is more likely that disclosing information could be exploited by other parties. However, if the document concerns international environmental issues, for instance, where shared goals and gains are more obvious, this is less likely to be the case. Likewise, disclosing confidential information received from external parties concerning such key strategic interests will generally hurt mutual trust more than when rather inconsequential information is shared. Consequently, the Ombudsman has rightly considered that a ‘high degree of transparency is appropriate’ in the area of general trade agreements, 134 as opposed to areas that are considered key strategic interests. This nuanced approach, which stems from the logic inherent in the rationales for secrecy, has so far not been followed by the CJEU, which further highlights the low level of judicial review the courts use to scrutinize acts of EU institutions.
Although EU institutions are left with a wide discretion and are not pressured by the CJEU to apply the international relations exception more strictly, there has been a development in the way the Commission deals with documents regarding trade negotiations. The overall shift in the direction of a ‘deliberative transparency’ model has been spurred on by the TTIP affair, in which the disruptive nature of a leak of previously withheld documents showed how secrecy in international relations can actually harm the EU's ability to act as an effective international actor. In fact, a more proactive approach in releasing documents does not undermine the EU's public interest, but rather serves it, since the legitimacy of decision-making in the EU increases with more transparency and early public participation in drafting and negotiating international agreements that impact citizens considerably, as the Ombudsman's TTIP opinion of 2014 exemplifies.
This development further shows that the classic paradigm of secrecy in international relations should be considered something of the past. Instead, the EU's increasing competences to act on the international scene should also prompt a more nuanced approach to applying the international relations exception by both EU institutions and the CJEU. Mainly, the logic of the two identified rationales for secrecy should be strictly followed and applied to the concrete contents of any document that is drafted or received in the context of international action. This means in part that the distinction between key strategic interests and less sensitive realms, such as negotiations on general trade agreements or international environmental accords, should inform the specific handling of documents concerning international relations. Not only would such an approach benefit the legitimacy of EU institutions and the participation of Union citizens in decision-making, but, as the TTIP saga shows, it would also improve the general effectiveness of the EU to act on the international scene.
Footnotes
Acknowledgements
The authors would like to thank Professor Dr Päivi Leino-Sandberg and the two anonymous reviewers for their helpful comments on earlier versions of this article.
Conflict of interest
The author(s) declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: Before joining the Faculty of Law of the University of Amsterdam in September 2018, Laurens Ankersmit worked in a previous capacity for ClientEarth and was involved in Case T-644/16 ClientEarth (ISDS), EU:T:2018:429 and Case C-612/18 P ClientEarth (ISDS) appeal, EU:C:2020:223.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This publication results from the NORFACE project ‘Separation of powers for twenty-first century Europe (SepaRope)’, a joint project by the Amsterdam Centre for European Law, Erik Castrén Institute of International Law and Human Rights, and the Centre for European Research at the University of Gothenburg. We gratefully acknowledge the funding of the ‘NORFACE Democratic Governance in a Turbulent Age programme’.
