53The Council argues that the question whether the documents at issue were made available on the basis of Rule 70 (B) of the ICTY Rules of Procedure and Evidence is not decisive from the point of view of EU law. In the present case, what is important is to determine whether the documents concerned were passed to the ICTY Prosecutor and Mr Gotovina’s defence counsel on the basis of Regulation No 1049/2001 or on the basis of the rule of EU law which was previously applicable, namely Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43). In the Council’s view, that is not the case, as the documents in question were passed on in the framework of the Common Foreign and Security Policy of the European Union.
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