In a recent decision of the Court of Justice of European Union (CJEU)[1], namely Breyer v REA, the ongoing question of how and when to strike a balance between commercial interests vs public interest, in particular rights to privacy, equality and expression, was once again brought forward.

The case concerns an EU funded research project, namely iBorderCtrl, on development of an AI enabled emotion recognition technology which would be deployed at borders as part of the EU border control management scheme. The issue arose upon refusal of the EU institutions to disclose information and give full access to documentation relating both to the authorisation of the project and to its progress. The main reasoning given was the protection of commercial interests of stakeholders.

As a result, an action was brought against the European Research Executive Agency (REA) by a member of the European Parliament (EP) mainly on the grounds that an overriding public interest clearly existed which would justify the need for full disclosure of documentation in particular in the context of a technology which could in principle be utilised for mass surveillance and crowd control purposes.

The verdict of the CJEU however falls short of effectively outweighing public interest over commercial interests by essentially stipulating that “general considerations” of overriding public interest may not be sufficient to establish a “particularly pressing” need for transparency.

Such a stance could certainly undermine the importance of democratic oversight and public debate and the need for transparency in software development in projects with undeniable impact on individuals at large.

Furthermore, it was confirmed that tools and technologies developed within the framework of a given project are considered trade secrets, only setting aside the results of the project.

[1] See here for details https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277067&part=1&doclang=EN&text=&dir=&occ=first&cid=1901751.