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fairness? transparency? June 14, 2013

Posted by Bradley in : transparency , trackback

The European Council’s press release about the forthcoming G8 summit states:

Promoting fairness and sustainable growth, jobs and development will be at the heart of the EU’s ambition for this G8 summit under UK with a special focus on the three T’s: trade, tax and transparency.

A quotation from José Manuael Barroso in the press release elucidates (?):

The European Union is coming to this G8 summit to promote global fairness: through unimpeded international trade as a vital engine for growth, jobs and development; by stepping up the global fight against tax evasion and avoidance, through automatic exchange of information; and through stronger transparency on revenue streams from extractive industries and forestry, on land governance and on government data.

I think they have a different understanding of fairness and transparency from mine, especially when it comes to the linkages between transparency and trade. A week ago the EU’s General Court held in Stichting Corporate Europe Observatory v Commission (Case T-93/11) that the Commission was entitled to respond to a request for access to documents by withholding documents relating to trade negotiations between the EU and India which were shared with trade associations which had participated in meetings as experts with respect to market access. Corporate Europe Observatory claimed:

that the documents at issue were sent, in full and without indication that they were in any way of a confidential nature, to trade associations with very large memberships and, therefore, to a very large, possibly indeterminate, number of persons, which effectively amounted to publishing or releasing those documents into the public domain.

The General Court adopted a rather formalistic approach. For example:

the Commission’s dissemination of the documents at issue cannot be regarded as having been intended to, and liable to, make those documents known to the public, that is to say, to an indeterminate group of persons, considered in general and in the abstract..Nor can the group of putative recipients of the documents requested, namely the members of the trade associations participating in the work of the advisory committee and of the working groups on market access, be treated as synonymous with the ‘public’. Those members also represent a specific group of persons defined according to a predetermined criterion, in this case membership of a trade association whose expertise is required in connection with the provision of assistance to the Commission for the purpose of deciding upon a strategy for access to the markets of a third State.

Not fair. Not transparent.

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