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Parliamentary questions
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14 November 2016
Question reference: E-004981/2016

On 14 March 2014, with reference to the fifth paragraph of Article 254 TFEU, the General Court submitted, in agreement with the Court of Justice, draft new Rules of Procedure for the approval of the Council(1). Following the Council's approval on 10 February 2015(2), the General Court adopted its new Rules of Procedure on 4 March 2015(3).

As indicated in the explanatory notes to the draft Rules of Procedure(4), Article 105 was introduced in order to fill a legislative gap concerning the treatment of information or material the confidential nature of which is based on overriding considerations pertaining to the security of the Union or of its Member States or to the conduct of international relations, in particular in proceedings concerning acts adopted by the institutions in the sphere of ‘restrictive measures’ pursuant to Articles 29 TEU and 215 TFEU.

The special regime laid down by Article 105 is to a large extent based on the case-law of the Court of Justice(5) according to which ‘overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned.

In such circumstances, it is nonetheless the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process(6).

The European Court of Human Rights has also held that there may be restrictions of the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person(7).

In line with this case-law, Article 105(8) of the Rules of Procedure provides that where the General Court considers that information or material which, owing to its confidential nature, has not been communicated to the other main party […] is essential in order for it to rule in the case, it may, by way of derogation from Article 64 and confining itself to what is strictly necessary, base its judgment on such information or material. When assessing that information or material, the General Court shall take account of the fact that a main party has not been able to make his views on it known.

Therefore the Council considers that these new Rules of Procedure are consistent with the adversarial principle.

(1)7795/14 COUR 12 INST 157 JUR 164.
(2)3368th meeting of the Council of the European Union (General Affairs), 10 February 2015 — 5938/15 and 6072/15.
(3)OJ L 105, 23.4.2015, p. 1.
(4)7795/14, COUR 12 INST 157 JUR 164.
(5)Judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‐402/05 P and C‐415/05 P, EU:C:2008:461, of 4 June 2013, ZZ, C‐300/11, EU:C:2013:363 and of 18 July 2013, Commission and Others v Kadi, C‐584/10 P, C‐593/10 P and C‐595/10 P, EU:C:2013:518.
(6)Judgment of 18 July 2013, Commission and Others v Kadi, C‐584/10 P, C‐593/10 P and C‐595/10 P, EU:C:2013:518, paragraph 125.
(7)Judgment of the ECtHR of 19 February 2009, A. and Others v. the United Kingdom [GC], ECLI:CE:ECHR:2009:0219JUD000345505, and the case-law quoted.

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