1) The proposed new rules for the European Court to take into account closed evidence have qualified majority support (i.e. the necessary support of Member States to be approved), and the Committee has cleared the rules from its scrutiny.
2) The UK will abstain from voting on the rules in the Council of the EU, because the rules do not meet UK requirements in two respects: (1) they would not enable confidential information to be withdrawn at any time; (2) they do not provide for judgments to be checked for accidental disclosure of sensitive information before being issued. The UK will lodge a statement making clear that “the absence of these safeguards will limit the types of information that the UK will be able to submit to the Court and seeking a review of the mechanism in the light of practical experience.
3) The new measures enabling the Court to consider evidence not made available to the other party “are likely to be called upon in only a limited number of cases, since it is often possible to sufficiently justify restrictive measures using non-confidential information” and that “other Member States accepted the Court’s position that such special measures needed to be proportionate and did not push for an equivalent to the UK Special Advocate provisions.
4) He summarised how the proposed new Article 105 will work:
The party who does not have access to the material will at all times know that an application to treat information as confidential has been made by the other party, and will have sight of the non-confidential reasons cited for the use of a closed procedure. The Court will decide where material is relevant for the purposes of its decision and also whether that material is confidential for the purposes of the case.
If material is relevant and confidential, the Court will order what procedures need to adopted, such as the production of a non-confidential summary to be disclosed to the other party. At that stage, the party who has produced the evidence can withdraw it, but Article 105 makes it clear that in those circumstances, any material which is withdrawn will not be taken into account in determining the case. Only in narrow circumstances can the Court take into account material which is not disclosed to the other party. It will, however, always take into account, in its assessment of that material, that it has not been disclosed to the other party.