Article 105 of the General Court’s Rules of Procedure deals with how the Court handles classified or security-sensitive information in a case.
The core tension it resolves: normally both parties to a case must see all evidence (the adversarial principle), but sometimes a party needs to rely on information whose disclosure would harm EU or Member State security or international relations.
Here is how the procedure works, in essence:
A party who wants to use sensitive material submits it separately, along with a request for confidential treatment that explains the overriding reasons for secrecy. The Court can also order such material to be produced as a measure of inquiry.
While the Court examines the material, it is kept from the other party. The Court then assesses two things: whether the material is relevant to deciding the case, and whether it is genuinely confidential toward the other party.
The outcomes depend on that assessment. If the material is relevant but not actually confidential, the Court asks the producing party to allow disclosure; if that party refuses, the material is excluded and returned. If the material is relevant and genuinely confidential, the Court does not disclose it, and instead weighs the right to a fair trial (especially the adversarial principle) against the security interests.
After weighing those interests, the Court issues a reasoned order setting out a solution, typically a non-confidential version or summary that conveys the essential content so the other party can still respond. The producing party may withdraw the material within two weeks of the decision; withdrawn material is excluded and returned.
As an exception, if the Court finds confidential material is essential and cannot be conveyed even in summary form, it may base its judgment on it anyway, while taking into account that the other party never saw it. The Court must ensure no confidential content leaks into its orders or final judgment.
Finally, the material is returned once the appeal period expires (or made available to the Court of Justice if an appeal is brought), and the Court sets published security rules for protecting it.
In short: the article creates a controlled, exceptional mechanism for using secret evidence in EU litigation, while trying to preserve fair-trial rights as far as security constraints allow.
