highly committed to the principle of transparency, a certain level of discretion and special care in handling its negotiating documents is essential. Only by safeguarding this discretion can the Commission preserve the room for manoeuvre required to lead the negotiations to a conclusion which promotes the EU interest. Indeed, as the General Court recognised in case T-301/1023,
the negotiation o f international agreements can justify, in order to ensure the effectiveness o f the negotiation, a certain level o f discretion to allow mutual trust between negotiators and the development o f a free and effective discussion. [...] [AJny form o f negotiation necessarily entails a number o f tactical considerations o f the negotiators, and the necessary cooperation between the parties depends to a large extent on the existence o f a climate o f mutual trust.
The General Court acknowledged furthermore that
[i]n the context o f international negotiations, the positions taken by the European Union are, by definition, subject to change depending on the course o f those negotiations, and on concessions and compromises made in that context by the various stakeholders, [...j [Tjhe formulation o f negotiating positions may involve a number o f tactical considerations o f the negotiators, including the European Union itself. In that context, it is possible that the disclosure by the European Union, to the public, o f its own negotiating positions, even though the negotiating positions o f the other parties remain secret, could, in practice, have a negative effect on the negotiating position o f the European Union.
Furthermore, such discretion is also required to safeguard the mutual trust between the negotiating parties, which is an essential precondition for the success of the negotiations. Indeed, some of the documents requested include direct and indirect references to the negotiation positions of the US. Release of the latter position would undermine the trust of the US in the confidentiality of the negotiations, and therefore also the chances of reaching successful negotiation results. The fact that both negotiating partners have pledged to respect the confidentiality of the negotiations within the limits of their respective access to documents rules only reinforces this conclusion4. In the above-mentioned judgment5, the General Court confirmed that
in the context o f international negotiations, unilateral disclosure by one negotiating party o f the negotiating position o f one or more other parties, even i f this appears anonymous at first sight, may be likely to seriously undermine, for the negotiating party whose position is made public and,
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