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2010 07 * Cambridge University Press * European Union Law Cases and Materials 2nd Edition * Damian Chalmers, Gareth Davies, Giorgio Monti

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AUTHORS:
Damian Chalmers
, Professor of European Law at the London School of Economics and Political Science.
Gareth Davies, Professor of European Law at the Department of International Law, VU University, Amsterdam.
Giorgio Monti, Reader in Law at the London School of Economics and Political Science. 

DATE PUBLISHED: July 2010
AVAILABILITY: In stock
FORMAT: Paperback
ISBN: 9780521121514
PAGES: 1.116
$67.00 


9. Governance
    9.6 Transparency
          (ii) Exceptions to the right to access to information

Most litigation has not focused on the extent of the right of access to information but rather the exceptions to this right, which allow access to be refused. These are set out in article 4 of Regulation 1049/2001/EC. On its face, it may seem an arcane business, to ponder over and again the meaning of this provision. Yet, it has proved central as these exceptions are for- mulated in such a way as to cover whole fields of Union governmental or legislative activity. Debates about the remit of article 4 raise questions as to whether we can be denied access to knowledge about the way in which an entire field of EU law or politics is being conducted. In this regard, the rate of refusal is quite high, with 13.99 per cent of requests for information being refused in 2008, with a further 3.33 per cent only being given partial access.[98] 

Article 4
1.  The institutions shall refuse access to a document where disclosure would undermine the protection of:
     (a) the public interest as regards:
         - public security,
         - defence and military matters,
         - international relations,
         - the financial, monetary or economic policy of the Community or a Member State;
     (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.
2.  The institutions shall refuse access to a document where disclosure would undermine the protection of:
     - commercial interests of a natural or legal person, including intellectual property,
     - court proceedings and legal advice,
     - the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.
3.   which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
4.  As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.
5.  A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.
6.  If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

There has been extensive case law on these exceptions, and only some of the more salient issues will be addressed here.[99] The starting point of the Union courts is that, as the public right of access to the documents is connected with the democratic nature of the EU institutions, the Regulation intends to give the public the widest access. The exceptions must therefore be interpreted and applied strictly.[100] This statement is, however, little more than rhetorical, particularly as the exceptions are grouped into three categories.
•        The first category set out in article 4(1) of the Regulation is mandatory. It requires the insti- tution to refuse access to the document if it falls within that category. The proposed amend- ments to the Regulation would create one further exception here relating to the public inter- est as regards the ‘the environment, such as breeding sites of rare species’.[101] It deletes the privacy exception set out in the current Regulation, replacing it with a new exception which requires EU institutions only to disclose personal data in accordance with EU legislation on data protection.
[102]
•        The second exception set out in article 4(2) and (3) gives the EU institutions a discretion to grant access to a document if, notwithstanding that it falls within one of the categories, there is an overriding public interest. This category has been extended by the proposed amendments to include arbitration and dispute settlement proceedings and the objectivity and impartiality of selection procedures.
•        The third exception, in article 4(5), relates to documents originating from a Member State. In such instances, there is a requirement of prior agreement.
The Regulation, thus, sets out three tests of review. This is not uncontroversial, as it is hard to see why an overriding public interest can never exist in relation to the first or the third category. There may, for example, be ‘security’ documents or national documents whose disclosure makes the decision-maker uncomfortable, but which are nevertheless essential for public debate.
With regard to the mandatory exceptions, the courts apply a test of marginal review. That is to say that they accept that the issue will often be sensitive and the institution in question must have discretion over the matter. The courts will thus not substitute their judgement for that of the institution but confine themselves to seeing whether accurate reasons have been given for the refusal and whether there has been a manifest error of assessment. A recent example is WWF European Policy Programme. The WWF, an environmental NGO, asked for documents concerning international trade negotiations taking place within the World Trade Organization. These documents set out other states’ positions as well as that of the Union in the negotiations, and also the minutes of the meetings. The Council refused to disclose under article 4(1)(a), arguing that this undermined the Union’s commercial interests and would be prejudicial to its relations with other states.

Case T-264/04 WWF European Policy Programme v Council [2007] ECR II-911
39.
. . . the rule is that the public is to have access to the documents of the institutions and refusal of access is the exception to that rule. Consequently, the provisions sanctioning a refusal must be construed and applied strictly so as not to defeat the application of the rule. Moreover, an institution is obliged to consider in respect of each document to which access is sought whether, in the light of the information available to that institution, disclosure of the document is in fact likely to undermine one of the public interests protected by the exceptions which permit refusal of access. In order for those exceptions to be applicable, the risk of the public interest being undermined must therefore be reasonably foreseeable and not purely hypothetical . . .
40. It is also apparent from the case law that the institutions enjoy a wide discretion when considering whether access to a document may undermine the public interest and, consequently, that the Court’s review of the legality of the institutions’ decisions refusing access to documents on the basis of the mandatory exceptions relating to the public interest must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers . . .
41. As to whether there was a manifest error of assessment of the facts, as the applicant essentially submits is the case, it must be noted that the Council refused to grant access to the note so as not to risk upsetting the negotiations that were taking place at that time in a sensitive context, which was characterised by resistance on the part of both the developing and the developed countries and the difficulty in reaching an agreement, as illustrated by the breakdown of negotiations at the WTO Ministerial Conference in Cancun in September 2003. Thus, in considering that disclosure of that note could have undermined relations with the third countries which are referred to in the note and the room for negotiation needed by the Community and its Member States to bring those negotiations to a conclusion, the Council did not commit a manifest error of assessment and was right to consider that disclosure of the note would have entailed the risk of undermining the public interest as regards international relations and the Community’s financial, monetary and economic policy, which was reasonably foreseeable and not purely hypothetical.

In this instance, the review was quite thin. The General Court defers to the Council’s assessment in paragraph 41 that providing the information will upset negotiation. However, it has not been consistent and, in some instances, the review of whether there has been a manifest error of assessment will be quite exacting. In Kuijer, a university lecturer challenged a decision by the Council to refuse him access to human rights reports on a number of countries that had been prepared for CIREA, an EU body that compiled documentation and exchanged information on asylum.[103] As some of these were quite damning, the Council refused on the grounds that this would damage relations with these countries. The General Court did not agree with this characterisation and overturned the Council’s decision. It held that refusal had to be made by reference to the specific content and context of each human rights report. These reports contained general information on the protection of human rights which had already been made public and did not involve any politically sensitive appraisal of the state by the Council itself. The Court held, therefore, that neither the content nor the nature of the reports justified a refusal to grant access.
In the case of the discretionary category in article 4(2) and (3) of the Regulation, EU institutions must allow access to a document if, notwithstanding that it falls within one of these categories, there is an overriding public interest which justifies disclosure. The strongest example of judicial review of this is Turco. Turco, an MEP, sought access to legal advice the Council had received from its legal services on the proposed Directive laying down minimum standards for the reception of applicants for asylum in Member States. This was refused under the legal advice exception in article 4(2). The Council stated that greater transparency alone was not an overriding public interest, and this view was upheld by the General Court. Turco and the Swedish government appealed to the Court of Justice, who upheld his appeal. Having found that the advice constituted legal advice for the purposes of article 4(2), the Court went on to assess whether there was an overriding public interest justifying disclosure. 

Joined Cases C-39/05 and C-52/05 Sweden and Turco v Council [2008] ECR I-4723
44. ... if the Council takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on the Council to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would thereby be undermined.
45. In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No. 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.
46. Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of the preamble to Regulation No. 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.
47. It is also worth noting that, under [Article 16(8) TEU], the Council is required to define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in such cases. Similarly, Article 12(2) of Regulation No. 1049/2001 acknowledges the specific nature of the legislative process by providing that documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States should be made directly accessible.

The requirements to be satisfied by the statement of reasons
48. The reasons for any decision of the Council in respect of the exceptions set out in Article 4 of Regulation No. 1049/2001 must be stated.
49. If the Council decides to refuse access to a document which it has been asked to disclose, it must explain, first, how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No. 1049/2001 relied on by that institution and, secondly, in the situations referred to in Article 4(2) and (3) of that Regulation, whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned.
50. It is, in principle, open to the Council to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. However, it is incumbent on the Council to establish in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose.

The judgment has been described as ‘spectacularly progressive’ by Adamski.[104] Certainly, it must be seen in its context which is that of an elected representative, an MEP, asking about an instrument which raised strong human rights concerns. Yet, the reasoning of the Court is general in nature and imposes significant constraints, both substantively and procedurally. It suggests that where disclosure enables increased participation in decision-making or greater accountability, then there is already the makings of a case of an overriding public interest (paragraph 45). Yet, disclosure will in many cases enable this. The procedural constraints are also quite precise. It is not enough simply to mention a category and leave it at that. The institution must explain specifically how the interest is undermined and whether or not there is a public interest.
The final exception is set out in article 4(5) and concerns documents originating from a Member State. The traditional view is that the state concerned can veto any disclosure.[105]
This changed in Sweden v Commission,[106] where Sweden appealed against the IFAW decision of the General Court to the Court of Justice.[107] IFAW, a German NGO concerned with nature conservation, sought disclosure of certain documents relating to the reclaiming of part of an estuary for the construction of a runway that originated in Germany. The General Court held that if a Member State requested, as Germany did here, that the document not be disclosed, then it should not be disclosed. The Member State need not give reasons and the question would be decided exclusively by the national law of that state. The Swedish government appealed. The Court of Justice upheld the appeal. It held that to give a national veto over documents originating from a Member State would be incompatible with the purpose of the Regulation, which was to grant the widest possible access to documents by allowing that right to be frustrated without any objective reason. It would also introduce arbitrary distinctions whereby documents of a similar kind held by the EU institutions would have different rules applying to them depending on the origin of the document. The national veto applied, therefore, only if the document fell within one of the categories set out in article 4(1)–(3) of the Regulation. If an EU institution received a request for a national document, it was required to open a dialogue with the Member State, which could only refuse disclosure if it provided reasons why the document fell within one of the exceptions set out in article 4(1)–(3).
The judgment indicates that the same substantive principles concerning grounds for disclosure will apply whatever the provenance of the document. In this way, it significantly expands the remit of the principle in that whole fields of activity, in which the predominant players are Member States, will now be subject to far greater scrutiny. It has led to a reaction, however. The proposed amendments suggest a new article 5(2).

Article 5(2)
Where an application concerns a document originating from a Member State, other than documents transmitted in the framework of procedures leading to a legislative act or a non-legislative act of general application, the authorities of that Member State shall be consulted. The institution holding the document shall disclose it unless the Member State gives reasons for withholding it, based on the exceptions referred to in Article 4 or on specific provisions in its own legislation preventing disclosure of the document concerned. The institution shall appreciate the adequacy of reasons given by the Member State insofar as they are based on exceptions laid down in this Regulation.

Two qualifications to the Sweden v Commission judgment are thus added, both of which narrow the scope of access. First, the substance of the national reasons cannot be second-guessed by the EU institution. Even if it disagrees with them, it must respect them and not disclose the document if that is what is requested. It may be open to the applicant to challenge the Member State’s refusal but it can only do this before a national court, as it does not have standing to challenge Member States before the Court of Justice. Secondly, a further exception is added, namely exceptions allowed under national legislation. In this way, Member States can, if they so wish, restrict the access considerably by simply passing very draconian legislation.


FURTHER READING
     D. Adamski, ‘How Wide is the “Widest Possible”? Judicial Interpretation of the Exceptions to the Right of Access to Official Documents’ (2009) 46 Common Market Law Review 521
     G. Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ (2006) 43 Common Market Law Review 63
     C. Joerges, ‘Integration Through De-legalisation?’ (2008) 33 European Law Review 291
     C. Joerges, Y. Mény and J. Weiler (eds.), Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance (EUI and NYU, 2002), available at www.jeanmonnetprogram.org/papers/01/010601.html
     C. Möllers, ‘European Governance: Meaning and Value of a Concept’ (2006) 43 Common Market Law Review 313
     D. Obradovic and J. Alonso, ‘Good Governance Requirements Concerning the Participation of Interes Groups in EU Consultations’ (2006) 43 Common Market Law Review 1049
     C. Radaelli, ‘Whither Better Regulation for the Lisbon Agenda?’ (2007) 14 Journal of European Public Policy 190
     J. Scott and D. Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 European Law Journal 1
     S. Smismans, ‘New Governance: The Solution for Active European Citizenship, or the End of Citizenship?’ (2007) 13 Columbia Journal of European Law 595
     J. Wiener, ‘Better Regulation in Europe’ (2006) 59 Current Legal Problems 447

[98] European Commission, above n. 85, 10.
[99] For more extensive treatment, see D. Adamski, ‘How Wide is the “Widest Possible”? Judicial Interpretation of the Exceptions to the Right of Access to Official Documents’ (2009) 46 CMLRev. 521.
[100] See e.g. Case C-266/05 P Sison v Council [2007] ECR I-1233.
[101] European Commission Proposal, above n. 82, art. 4(1)(e).
[102] Ibid. art. 4(5).
[103] Case T-211/00 Kuijer v Council [2002] ECR II-485.
[104]
Adamski, above n. 99, 536.
[105] Case T-76/02 Messina v Commission [2003] ECR II-3203.
[106] Case C-64/05 P Sweden v Commission [2007] ECR I-11389.
[107] Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135.