European Commission defends privileged access for 'big business'
by Pia Eberhardt
How can documents that the European Commission has already shared with the business community at large suddenly become confidential when a public interest group asks for their disclosure - asks campaigner
In an oral hearing at the European Union's General Court in Luxembourg on January 11, the European Commission defended its practice of sharing sensitive information with big business lobby groups while withholding the same information from the general public. The hearing took place in the context of Corporate Europe's Observatory's legal action, suing the commission for withholding information relating to the EU's free trade talks with India. The commission is accused of discriminating in favour of corporate lobby groups and of violating the union's transparency rules.
The lawsuit concerns 17 documents related to the ongoing EU-India free trade negotiations. The commission shared all of these documents in full with corporate lobby groups such as BusinessEurope. But we only received censored versions with allegedly sensitive information about priorities, tactics and strategies in the negotiations deleted. The commission had argued that the public disclosure of these documents would negatively affect relations with India. But how can documents that the commission has already shared with the business community at large suddenly become confidential and a threat to the EU's international relations - when a public interest group asks for their disclosure? This is the core question raised by the lawsuit.
According to its lawyer, the commission had done everything correctly. It had carefully assessed all documents requested by us via the EU's access to information legislation. It was "fully justified" to censor them as their public disclosure would undermine the EU's relations with India and in particular the ongoing negotiations for an EU-India free trade agreement.
The lawyer claimed images of protests against the FTA and a call to halt the talks signed by more than 100 civil society groups showed how real that danger was. The business lobbyists who had originally received the documents, on the other hand, had been of a limited number and not "the people overall". According to the commission, they would have known to treat the documents confidentially. The lawyer would not be drawn on the nature of the deleted passages. He argued that the documents were initially distributed to a potentially large number of business lobbyists and that there was an enormous potential for the information to have been passed on to others. Withholding the same information from us appeared to be an instance of discrimination.
Take for example one of the contested documents, a letter from the former European Trade Commissioner Peter Mandelson to BusinessEurope's then Director General Philippe de Buck - from March 2008. In this letter, Mandelson commented on the EU and Indian negotiating positions. However, these comments were deleted from the version that was released to us. BusinessEurope's de Buck had clearly received it without deletions. In a handwritten note at the bottom of the letter, Mandelson even encouraged him: "You might make some comments to your counterparts in the CII in view of the above". CII is the Confederation of Indian Industries, which represents more than 90,000 Indian companies.
Asked by the court how it interpreted Mandelson's handwritten note and whether it was meant to encourage that the information in the letter was spread further, the commission's lawyer was on shaky grounds: "Well if you write this to a Greek, they will put the letter online." But the lawyer claimed that Mandelson, an Englishman, had clearly not meant to encourage de Buck to share a photocopy of the letter. Notably, Mandelson had suggested to de Buck that he "might" discuss the content of the letter with his Indian counterparts, instead of using the allegedly more explicit "may" or "should". An English lesson, commission style.
The court hearing took place as the EU and India are speeding up negotiations on a far-reaching free trade agreement, which they want to conclude by June 2013. The talks, which started in 2007, have been shrouded in secrecy, with no text or position as yet disclosed to the public. However, there are major concerns prompted by the scant information, which has emerged suggesting that the EU-India FTA will in fact fuel poverty, inequality and environmental destruction. There are also fears that the commission and the Indian government have effectively handed the drawing up of the negotiating agenda over to big business.
What is at stake in this lawsuit is whether the commission can continue its habit of granting big business privileged access to its trade policy-making process by sharing information, while at the same time withholding it from the public. This practice not only hampers well-informed and meaningful public participation in EU trade policy-making - it also leads to a trade policy that, while catering for the needs of big business, is harmful to people and the environment in Europe and across the world.
Pia Eberhardt is a researcher at the Corporate Europe Observatory campaign group
I can understand that no one would publicly want to give away negotiation positions. Rhetorical question: does India disclose all details, including the obviously secret ones, from its negotiation strategy papers?
Ask yourself: would you enter contract negotiations with your employer and put your strategy, tactics and goals on Facebook? Even after the fact and while knowing that you'll be entering the exact same negotiation process next year? Of course not.
So I completely understand that this kind of information is kept secret. What I do question is the way the commission goes about this process. Declaring full disclosure while blotting out information in documents is a contradiction in terms so I understand the frustration.
It would therefore be better if the EU would, in releasing documents, add a disclaimer with an explanation that due to strategic sensitivies; some information cannot be disclosed. Be frank, be honest.
Kaj Leers - Amsterdam, The Netherlands