Media suit seeks to open EU court filings

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LUXEMBOURG -- A journalists' group told the European Union's second highest court on Wednesday that Brussels takes too sweeping a view of its right to hold the arguments it submits to EU courts secret and must open more of them.

But the European Commission told the Court of First Instance that Brussels had to weigh the public right to know against the court's need to deliberate insulated from public pressure.

"We think we have found the right balance," Commission lawyer Christopher Docksey told the 13-member Grand Chamber during a three-hour hearing, marking only the third time such a chamber has ever been convened.

He cited intense publicity that surrounded cases about former Italian Prime Minister Silvio Berlusconi and IRA leader Gerry Adams and said opening briefs would have made things worse.

The court was hearing a request by the Brussels-based International Press Association to force the EU executive to make more of its court filings available to the public.

The Commission has long had a policy of confidentiality for legal briefs filed to the Court of First Instance and the European Court of Justice, the highest EU court.

API asked the Commission in 2003 for access to seven court filings on cases ranging from competition decisions on major business mergers to disputes with member states on transatlantic air travel pacts.

The EU executive released two of the documents for cases it considered closed, but declined to open files on pending cases.

The journalists' lawyer, Frederic Louis, argued the Commission has construed the language of the law too narrowly.

EU rules say the 27-nation bloc's institutions should refuse access to documents if disclosure "would undermine the protection of ... court proceedings and legal advice ... unless there is an overriding public interest in disclosure."

Louis said the Commission routinely kept cases closed when the real test should be "would access undermine the court?"

The judge in charge of the case, Portugal's Maria Eugenia Martins Ribeiro, spent more than an hour patiently probing the views of both sides.

But one judge, France's Hubert Legal, was openly hostile to the arguments of Louis, the lawyer for the journalists.

"You engage in circular reasoning," Legal said at one point. If the Commission opened most documents, it would no longer face opponents on a level playing field, he said.

Louis replied that as a public institution the Commission must be held to a higher standard, "like Caesar's wife".

Judge Joerg Pirrung of Germany asked if the Commission had held back arguments out of fear of public disclosure.

"So far it has not been necessary," Commission lawyer Pekka Aalto said.

API argues the public has an overriding interest in knowing the Commission's views and contends secrecy makes it difficult for journalists to provide timely, comprehensive information.
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