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2013 11 * European Parliament – Directorate General for Internal Policies, Policy Department C: Citizens' rights and constitutional affairs * Openness, transparency and access to documents and information in the European Union * Henri Labayle, professor at Universitè de Pau et des pays de l’Adour

This note was requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.
AUTHOR Henri Labayle, professor at Universitè de Pau et des pays de l’Adour
RESPONSIBLE ADMINISTRATOR Andreas Hartmann Policy Department: Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: poldep-citizens@europarl.europa.eu
LINGUISTIC VERSIONS Original: FR Translation: EN
ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter, please write to: poldep-citizens@europarl.europa.eu
Manuscript completed in November 2013. Source: European Parliament © European Union, 2013
This document is available on the Internet at: http://www.europarl.europa.eu/studies
DISCLAIMER
The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy.

 

EXECUTIVE SUMMARY

This study is an update to a previous study[1] about case law in relation to the right of access to documents. It puts into perspective the Union’s institutional practice in relation to the entry into force of the Treaty of Lisbon.
The right of access to documents in the Union is part of a legal context updated by the Treaty of Lisbon. The principles of transparency and good governance have constitutional implications for the Union’s institutions, and the Charter of Fundamental Rights of the European Union establishes them as a fundamental right. While the implementation of Regulation (EC) No 1049/2001 has been a success during the last 10 years, it now needs to be revised to bring it up to date.
In fact, the constitutional progress represented by the Treaty of Lisbon has been boosted by advances in case law. The challenge of the revision process, requested by the European Parliament since 2006 and initiated in 2008, involves giving consideration to the following two elements: the declaration of a fundamental right and the important lessons learnt from case law.
This body of case law and observation of the Union’s institutional practice have given rise to the following significant remarks.
I – The first remark concerns the very nature of the right of access. The combination of the Treaty of Lisbon with the case law relating to Regulation (EC) No 1049/2001 now creates a different perception of the right of access. Before being an institutional challenge within the Union, requiring institutions to have the same amount of information when performing their duties, access to documents has now become a right of the individual.
This is a general trend. It is noted in comparative law and in European law in particular, with this being confirmed by the Convention of the Council of Europe on Access to Official Documents. The nature of the obstacles it describes preventing the right of access is largely the same as that under EU law. On the other hand, the Union does not give a specific independent authority the guarantee of access to documents, unlike many of its Member States.
II – A second series of remarks derives from the Court of Justice’s interpretation of Regulation (EC) No 1049/2001. Apart from the far-reaching nature of this right, in less than five years, the Court has given its verdict accordingly on exercising the right of access in relation to administrative, legislative and judicial matters.
1. The right of access to documents is linked to the Union’s democratic nature. Transparency guarantees greater legitimacy and accountability of the administration in a democratic system because citizens need to have the opportunity to understand the considerations underpinning EU regulations in order to exercise their democratic rights (Turco, Access Info Europe cases).
2. Access must be as broad as possible, thereby reducing the internal ‘space to think’ or the ‘negotiation space’ which the institutions want. Therefore, protecting the decision-making process within the Union excludes any general confidentiality, especially in the field of legislation (Borax, Access Info and MyTravel cases). 
3. The scope of the various exceptions is tightly controlled. Therefore, the major challenge posed by the exception concerning international relations does not automatically entail confidentiality (In’t Veld cases). Similarly, court proceedings are not excluded from transparency under the guise of respect for the proper administration of justice (API case). Legal opinions are not necessarily bound by confidentiality, especially on legislative matters (Turco and MyTravel cases), no more than the identity of Member States is protected by confidentiality during the legislative procedure (Access Info Europe case). 
4. Combining data protection schemes may require ‘switching’ from a general regulation to a special regulation on data protection (Bavarian Lager case) and on monitoring activities. Legal protection for confidentiality (Bavarian Lager case) and a ‘general presumption’ of confidentiality (Technische Glaswerke Ilmenau case) may reduce the scope of transparency.
5. The documents supplied by Member States are not covered by general confidentiality (IFAW judgment).
III – There are also plenty of lessons which may be drawn from the practice of the three EU institutions, by reading the annual reports required by the regulation and looking at certain national practices.
1. The number of applications for access in the European Union is in decline. This is not in keeping with the practices in some Member States or even in states outside the EU such as the United States or Australia.
2. The volume of refusals to provide access remains proportionally large and is tending to rise.
3. The number of applications for access in the areas of Common and Foreign Security Policy (CFSP) and Justice and Home Affairs (JHA) confirms the sensitive nature of these matters.
The type of public interested in gaining access to documents should raise questions for the Union on two counts. Firstly, professionals are the main group requesting access to documents (particularly Commission documents) and, secondly, university institutions are nowadays the most efficient channels for transmitting information and guaranteeing administrative transparency. The glaring lack of interest from ordinary citizens in transparency must provide some food for thought.

INTRODUCTION

There is an ever-growing demand for openness and transparency in modern societies. The European Union is also subject to this demand, although it is not necessarily successful in finding solutions which meet people’s expectations.[2] The Union has undergone a sea change, from a diplomatic approach to dealing with records, where secrecy is the rule, to an institutional system requiring a democratic basis.
Firstly, and mainly as a result of the accession of new Member States, which are sensitive to this issue, the European Union made some of its documents available for public access. Declaration 17 annexed to the Treaty of Maastricht referred to the link between the transparency of the decision-making process and the democratic nature of the institutions, but its scope remained limited. Two Commission communications on transparency and access to documents were then published, followed by a ‘Code of Conduct’[3]adopting the principle of public access to Council and Commission documents.
Secondly, the Treaty of Amsterdam enshrined these principles in primary law. Firstly, Article 1 of the treaty stated that ‘decisions are taken as openly as possible’, thereby recognising the principle of openness. Secondly, Article 255 TEC provided a legal basis for governing the right of public access to EU documents. This would be achieved with the adoption of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents[4]. Finally, the White Paper on governance 2001[5] would highlight the need for involvement from and openness towards citizens to restore confidence in the Union.
Until then, the principles of ‘openness’ and ‘transparency’, which were used frequently in common parlance, had actually fulfilled more of a political than a legal function. Highlighted by the European Union with the aim of abating the crisis of confidence over the administration, these principles still had very little regulatory force, unlike the right of access to documents, which would be developed under Regulation (EC) No 1049/2001.
The scope of this study does not extend to a more in-depth examination of this historical period, but it does cover two of its main features. Firstly, openness and transparency basically boiled down to just one thing, access to information; and, secondly, the guarantee from the judicature was key to ensuring that this right had real meaning. Case law was intended to make the judicature a prominent player in the exercise of the right of access to documents, on the instigation of the European Ombudsman, thereby conferring upon it the status of a real fundamental right.
The prospect of this development was upset by the entry into force of the Treaty of Lisbon. This treaty outlined a new legal framework both in terms of the functioning of the Union’s administration and of European citizens’ rights.

(…)

1.      LEGAL FRAMEWORK OF RIGHT OF ACCESS TO DOCUMENTS

The Treaty of Lisbon changes not only the perception of the right of access to documents in the Union, but also the conditions under which the administration and the legislature perform their duties. Nowadays, the principles of openness and transparency feature in EU primary law, which should have consequences for the right of access to documents as one of the ways of applying that law.

1.1 Constitutional framework

The text of the treaty is clear: the principle of openness is set out in it. Hence its implementation via the principle of transparency and principle of access to documents[6].

1.1.1 Principle of openness

This is a general, ‘umbrella’ term incorporating both the principle of transparency and the principle of participation.
Article 1 of the Treaty on European Union (TEU) therefore echoes the Treaty of Amsterdam by stating that it marks ‘a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’[7].
The treaty conveys the specific meaning of this principle in two places. In Article 10(3) on the ‘functioning of the Union’, under Title II on ‘democratic principles’, the TEU confirms that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’. The principle of openness is therefore linked for the first time to the ‘democratic life’ of the Union and to ‘representative democracy’. The Union is democratic because it is ‘open’ to its citizens, which is confirmed by the following article.
Article 11(2) TEU is aimed directly at the institutions, which must maintain ‘an open, transparent and regular dialogue’ with representative associations and civil society. It therefore adds an active dimension to the principle of openness.
The Treaty on the Functioning of the European Union (TFEU) reinforces the basis of the principle by setting out the terms for its implementation in Article 15(1) TFEU. The ‘Union’s institutions, bodies, offices and agencies’ have a duty to conduct their work ‘as openly as possible’ and this is ‘in order to promote good governance and ensure the participation of civil society’. This requirement requires several comments.
At this stage, the principle of openness in the Union was still regarded as a prerequisite for its functioning more than as a right of its citizens. This explains why it had a very wide scope of application, extending across the whole administrative machinery. Although it did not have an absolute remit and included no obligations in terms of results, the ‘promotion’ objective assigned to the Union still required the Union to adopt a dynamic approach.
Finally, Article 298(1) and (2) TFEU provided a vital addition to the regulatory transposition of the principle of openness. Stating that in carrying out their missions, the institutions, bodies, offices and agencies of the Union ‘shall have the support of an open, efficient and independent European administration’, it conferred on the Union’s legislature the power to ‘establish provisions to that end’. 

1.1.2 Principle of transparency

As the Court of Justice confirmed in a leading case discussed below, ‘a lack of information and debate is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision- making process as a whole’[8]. With those words, the Union judge put the debate on transparency[9] squarely in the camp of legitimacy and democracy. From his perspective, ‘it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated’.
Previously and without yet mentioning the ‘requirement of transparency’[10], the case law of the General Court and the Court of Justice had been based on Declaration 17 annexed to the Treaty of Maastricht[11], in the absence of another more explicit text. Once this text became available with Regulation (EC) No 1049/2001, the judicature reinforced its argument. Transparency guarantees that ‘the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’[12]. It enables them ‘to carry out genuine and efficient monitoring of the exercise of the powers vested in the Community institutions’[13]. ‘Only where there is appropriate publicity of the activities of the legislature, the executive and the public administration in general, is it possible for there to be effective, efficient supervision, inter alia at the level of public opinion, of the operations of the governing organization and also for genuinely participatory organizational models to evolve as regards relations between the administration and the administered.’[14]
The procedural transparency and institutional transparency referred to in the TEU and TFEU merged in the Treaty of Lisbon to give some practical meaning to the Union’s action[15].
The principle’s normative scope still remained limited,[16] but the provisions of Article 11 TEU indicate that the battle lines had shifted. The Union’s institutions now had an obligation to apply the principle ‘by appropriate means’. Whether this involved the ‘open, transparent and regular dialogue’ with civil society stated in Article 11(2) TEU or the EU’s ‘actions being transparent’, which requires ‘broad consultations’ under paragraph 3, the respect for ‘democratic principles’ mentioned under Title II TEU exerted new pressure on the institutions, especially when it came to access to information, and by extension, documents. Therefore, this citizen’s right shifts from being a judgment call to being exercised in a regulatory context.
The consequences arising from this change of perspective were significant. The call for openness and transparency was no longer an abstract reference in this case, but represented a condition for the democratic legitimacy of the rule of the Union. The treaty ‘legalised’ principles that could, one day, be interpreted on the basis of case law, if, for example, a legislative act has been adopted outside this participatory dialogue required by the treaty. 

1.1.3 Right of access to documents

The public’s right to access institutional documents[17] was asserted in the Union by way of regulation before being enshrined in the founding treaties. The implementing regulation came before the constitutional declaration in this case, with the judge pointing out that ‘the domestic legislation of most Member States now enshrines in a general manner the public’s right of access to documents held by public authorities as a constitutional or legislative principle’[18].
This right is based politically on the principle of transparency. This was confirmed by the Court of Justice in 2007: its ‘aim is to improve the transparency of the Community decision-making process, since such openness inter alia guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’[19]. As the Court points out, ‘the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights’[20].
Legally speaking, this right was therefore established initially on the basis of Article 255 TEC, which gave citizens the right to access the documents of the three main institutions. It subsequently gave rise to a substantial body of case law without the Court of Justice going as far as to establish a general principle. Its general wording in the TEC explained its lack of direct effect[21], with the treaty instructing derived law to provide content for it. Nevertheless, at this point the right of access changed from a simple option granted on a discretionary basis to the administered by the institutions to a true ‘subjective, fundamental right’[22] granted to those targeted by Article 255 TEC.
The Treaty of Lisbon amends this law as it stands significantly in two respects.
First of all, the Charter of Fundamental Rights makes this access a fundamental right. Article 42 has the heading ‘Right of access to documents’, implying that ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents’. The explanatory notes accompanying the Charter point out that this Article 42 ‘has been taken’[23] from Article 255 TEC, which provided the basis on which Regulation (EC) 1049/2001 had been adopted, with the Convention wishing to extend its scope.
Advocate General Maduro emphasised this change in his conclusions on the case Sweden v Commission cited above with this ‘protection of the right of access under ever higher norms’: ‘Since the right of access to documents of the institutions has become a fundamental right of constitutional import linked to the principles of democracy and openness, any piece of secondary legislation regulating the exercise of that right must be interpreted by reference to it, and limits placed on it by that legislation must be interpreted even more restrictively.’[24]
When referring to the relationship between Article 42 of the Charter and the European Convention on Human Rights (ECHR), this EU judge therefore stated that ‘with respect to the right of access to documents of the Union’s institutions, bodies, offices and agencies, the Charter provides for a special fundamental right’[25].
The TFEU itself has also changed the legal environment of the right of access. This has happened, first and foremost, because the protection desired by Member States regarding the confidentiality of the Council’s work disappeared in Article 207(3) TEC[26]. On the other hand, Article 15(1) TFEU confirmed the requirements for ‘good governance’ by providing specific content for the principles of openness and transparency. In paragraph 3 the ways of exercising the right of access to documents on a compulsory basis are expressed in far more precise terms than in Article 255 TEC. The removal of the inter-governmental pillars and the downgrading of the institutional treatment of the JHA and CFSP allow it to cover all the Union’s work, which must be carried out ‘as openly as possible’.
A literal analysis of Article 15 TFEU highlights that this statement is part of an overall initiative. While the Union’s governance requires its work to be conducted ‘openly’ in paragraph 1, paragraph 3(3) of the same article refers to the proceedings of each relevant EU administrative entity being ‘transparent’. Therefore, the systematic nature of the triangle of openness/transparency/document access is outlined in the treaty. Moreover, it clearly states the scope of the obligations incumbent upon the ‘institutions, bodies, offices and agencies’. While the call for the Union’s work to be conducted ‘as openly as possible’ is not necessarily an indication of a constraint, on the other hand, the conditions for the right of access to documents are pinned down in a more binding manner.
Article 15(3) (1) TFEU starts off by defining a right ‘subject to the principles and the conditions to be defined in accordance with this paragraph’. It does not grant the legislature the power of discretion to decide what these ‘principles and conditions’ are. It is the duty of the legislature to implement the right of access allowing EU citizens to enjoy this right. The definition of its general principles and conditions for exercising it is an absolute requirement, governed by ordinary legislative procedure.
The third subparagraph of the same article then reinforces the obligations imposed on the relevant entities: they must ensure that their ‘proceedings are transparent’ and they have to draw up in their own Rules of Procedure ‘specific provisions regarding access’ to documents. This presupposes therefore that the right of access has been regulated before.
Lastly – and this is an important observation – the authors of the treaty expand considerably the group of institutions that are bound by the obligations. The group is no longer just made up of the three main institutions, but in a very general manner incorporates the ‘Union’s institutions, bodies, offices and agencies’. The penultimate subparagraph of paragraph 3 emphasises in the case of the Court of Justice of the European Union (CJEU), the European Central Bank (ECB) and the European Investment Bank (EIB) that they ‘shall be subject to this paragraph only when exercising their administrative tasks’. This generalisation, which is already taken into account by a number of internal agencies and institutions, therefore reinforces the need for a new text on the right of access, failing which a right based on the Treaties may not be applied.
The value added offered by the Treaty of Lisbon can therefore be summarised as follows: on the one hand, the treaty establishes a real fundamental right of access to documents and, on the other hand, it tightly controls the exceptions to a right whose scope has been generalised.
The value added deriving from this for individuals then allows a hierarchy of challenges to be established: before being an institutional challenge within the Union, requiring institutions to have the same amount of information when performing their duties, the access to documents has now become a right of the individual. This shift completes the structural change initiated by the Union’s judicature 20 years ago.
In this legal context, the regulation of the right of access applied by Regulation (EC) No 1049/2001 13 years ago seems considerably out of touch nowadays. Both the ‘general principles’ and legitimate ‘limits’ governing the right of access, mentioned in Article 15(3) TFEU, need to be revamped by the legislator by means of the ordinary legislative procedure, a fact which should not be forgotten.
The need to update the regulation actually comes from the triangle described earlier, linking the duties of openness, transparency and access to documents[27]. It extends beyond the framework of Article 15 TFEU alone, for instance, in light of Article 298 TFEU. Furthermore, the strictly minimalist approach of the Commission’s second regulatory proposal[28] derives more from the amendment to the previous regulation than from the implementation of the Treaty of Lisbon.
Consequently, with regard to both the scope of the right of access and the particular issues relating to the sensitive nature of some classified documents or codifying the advances made in case law for some categories of documents, a new text needs to be adopted. 

1.2 Regulatory framework of the right of access to documents

A quick recap of what this framework[29] entails will make it possible to assess not only the challenges involved with its revision but also the significant impact of the case law from the Court of Justice and the General Court. 

1.2.1 System for the right of access

As a result of the gap in the Treaties, Regulation (EC) No 1049/2001 has become the cornerstone of the right of access to administrative documents, which has led the Court of Justice to focus specific attention on the reason for this in order to clarify its use. This reason provides some guiding principles:
* Access to documents is linked to the principles of transparency and openness referred to by the Treaties, with the regulation consolidating current practices.
* The purpose of the regulation is ‘to give the fullest possible effect’[30] to the right of access in its definition of its principles and limits. Therefore, in principle, ‘all documents should be accessible to the public’, in other words, ‘any citizen of the Union, and any natural or legal person’ residing there.
* The right of access assumes a particular meaning ‘in cases where the institutions are acting in their legislative capacity’ and it is applicable to CFSP and JHA.
On this point, Regulation (EC) No 1049/2001 provides an extremely broad definition of a ‘document’ as Article 3(a) defines it as ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility’. In specific terms, each institution has therefore been granted the procedural mechanisms required to obtain access and, by applying Regulation (EC) 1049/2001, they produce an annual report about its application.
In addition to this key text, other specific texts should be mentioned[31] whose interaction with Regulation (EC) No 1049/2001 caused difficulties which led the Court of Justice to settle matters (see below)[32]. The following table[33] can provide accordingly a summary of the current state of play.
 

Table 1: Regulatory framework of the right of access to documents
Scope and beneficiaries
Legal framework Institutions and bodies covered EU citizens and residents Any natural
or legal person
Regulation (EC)
No 1049/2001
+
(EC) No 1367/2006
Parliament
Council
Commission
Agencies
Any document
Non-compulsory rules
+
Regulation (EC)
No 1367/2006
Court of Auditors
European Central Bank
European Investment Bank
European Economic and Social Committee
Committee of the Regions
European Ombudsman
Any
document
Only
environmental
information
Regulation (EC)
No 1367/2006
European Data Protection Supervisor (EDPS)
Court of Justice
(except for appointment to judicial office)
Only environmental
information

1.2.2 Exercise of the right of access

In line with the national legislations relating to the right of access, the EU right is not an absolute right[34]. Regulation (EC) No 1049/2001 sets out a principle, which is then accompanied by ‘exceptions’ listed in the various paragraphs of Article 4. Without entailing any legal consequences, Article 15 TFEU does not use itself the term ‘exceptions’, but refers to ‘conditions’. Article 42 of the Charter does not mention them at all.
The proposal for revision tabled by the Commission in 2008 continued to follow this logic, whereas the second proposal submitted in 2011 preferred more moderate wording, mentioning in its justification and first article ‘the general principles and the limits on grounds of public or private interests governing the public right of access to documents have been laid down in Regulation (EC) No 1049/2001’.
This list of ‘exceptions’ or ‘limits’ are mainly based on case law.

1.3 Case-law framework of the right of access to documents

Several factors explain the impact which case law has had on exercising the right of access.
Firstly, until 2001, the fragile nature of the legal basis of this right required the additional intervention of the Union’s judicature. This judicial involvement proved to be crucial in guaranteeing a minimum level of protection for this right. The subsequent adoption of Regulation (EC) No 1049/2001, based on the Treaty of Amsterdam, did not mean, for all that, any less need for a case-law interpretation. The interpretation of the text along with the list of the exceptions to public access stipulated by the regulation led both the Court of Justice and the General Court to increase the number of interventions. This body of case law has made a huge contribution to the specific content of the right of access.
Secondly, the behavior of the institutions makes it clear that appealing to the judicature is the only path offered to citizens of the European Union for gaining access to a large proportion of documents, in spite of the confirmation of the principle of access and the availability of the registers to this end.
In fact, both the Council and Commission share a common reservation, if not a common hostility towards an open interpretation of Regulation (EC) No 1049/2001. The issue of the exceptions disclosed by Article 4 of the Regulation has been the main bone of contention. Whether it concerns documents supporting international negotiations involving the former or those relating to infringement or competition law procedures involving the latter, both institutions have joined forces to curb as far as possible the right of access. It has fallen to the judicature to provide arbitration and define clear-cut rules of behaviour, by balancing the interests in play.
The case law of the European Union on the right of access to documents is based on largely converging analyses from both the General Court and Court of Justice [35]. During the period under examination, the Union’s courts have therefore issued around 10 key judgments which have had a considerable impact on the future regulation:
ECJ, 1 July 2008, Kingdom of Sweden and Turco v Council, C-39/05 P and 52/05 P
CJEU, 29 June 2010, Commission v Technische Glaswerke Ilmenau, C-139/07 P
CJEU, 29 June 2010, Commission v Bavarian Lager, C-28/08 P
CJEU, 21 September 2010, Kingdom of Sweden and ASBL(API) v Commission, C-514/07 P, C-528/07 P, C-532/07 P
CJEU, 21 July 2011, Kingdom of Sweden and MyTravel v Commission, C-506/08 P
CJEU, 21 June 2012, IFAW v Commission, C-135/11 P
CJEU, 28 June 2012, Commission v Odile Jacob, C-404/10 P
CJEU, 17 October 2013, Council v Access Info Europe, C-280/11 P
GC, 19 March 2013, Sophie In’t Veld v. Commission, T-301/10 

1.3.1 Principle of right of access

The Court of Justice presents it in a formal perspective. In its leading case Sweden v Commission and Turco, [36]it emphasises that ‘in view of the objectives pursued by Regulation No 1049/2001 and especially the fact, noted in recital 2 in the preamble thereto, that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the fact that, as stated in recital 4 and in Article 1, the purpose of the regulation is to give the public the widest possible right of access, the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly’[37]. This ‘wide as possible’ access is guaranteed strictly on the basis of two requirements[38]: any application for access must be examined specifically and individually. This means that evidence has to be provided, proving that the interest protected by the regulation has been specifically and effectively undermined and an examination carried out, on a case-by-case basis, into a foreseeable risk relating to disclosure.[39] The case law of the period under examination confirmed this conventional approach.
The following summary can therefore be provided of the relevant case law. The Court of Justice endeavors to guarantee as far as possible the right of access in the Union, especially when transparency facilitates the practice of democracy, by clarifying the Union’s political choices, which is why it has focused particular attention on the ‘legislative’ aspect of the relevant documents. It therefore tightly controls the internal ‘space to think’ which the institutions want to use to oppose the applications for access during the legislative process. Nevertheless, when needed to protect some requirements, such as those relating to privacy and security, the Court of Justice approves the refusals made by the institutions. Furthermore, it rejects any argument aimed at making confidentiality the rule and disclosure the exception. It has systematically developed a reverse interpretation of the regulation.

1.3.2 Content of right of access

(…)

        Relative limits on the right of access

(…)

o Protection of court proceedings and of legal advice

The key aspects of this are based on the case law of the Court of Justice in the cases ‘MyTravel’» and ‘ASBL API’. Nevertheless, it will be remembered that in the Jurašinović case cited above, the General Court believed that the Council was committing an error in law, by thinking that it was bound by the rules on confidentiality of the International Criminal Tribunal for the former Yugoslavia, by giving up its power of discretion[92].

- Court proceedings

The Court confirmed that in the ‘API’[93] case disputed procedures were not excluded from the scope of transparency. Examining the appeals lodged by the Commission, the Kingdom of Sweden and an association of journalists, the Court provided an important clarification on the debate about the institutions drafting pleadings. The general presumption of confidentiality which it establishes was counterbalanced by a time-related factor.
First of all, the Court interpreted the exception desired by the legislator: ‘the limitations placed on the application of the principle of transparency in relation to judicial activities pursue the same objective: that is to say, they seek to ensure that exercise of the right of access to the documents of the institutions does not undermine the protection of court proceedings[94].’ Otherwise, there would be a risk of upsetting the vital balance between the parties to a dispute. Moreover, there is a ‘general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings’[95]. These pleadings actually feature more in the legal activity of the Court, which is protected, than in the administrative action taken by the relevant institution. In fact, this position manages to turn into an absolute exception what, in Regulation (EC) No 1049/2001, comes under relative exceptions 1⁄4
Nevertheless, in keeping with the case law already established[96], this presumption is not non-rebuttable. An overriding public interest may be allowed to dismiss it under the legislation itself. Furthermore, the Court ‘does not exclude the right of those interested parties to demonstrate that a given document disclosure of which has been requested is not covered by that presumption’[97]. Therefore, the presumption is only valid up until the judgment is issued (and not until the hearing, as put forward by the General Court): ‘that is not the case where the proceedings in question have been closed by a decision of the Court[98].’ In this case, ‘there are no longer grounds for presuming that disclosure of the pleadings would undermine the judicial activities of the Court since those activities come to an end with the closure of the proceedings’. The proper examination of the requested documents will help ascertain whether there is a risk of seeing disclosure undermine other proceedings still pending.
The debate on the nature of this ‘overriding public interest’ is certainly not over. In fact, the Court of Justice seems reluctant to develop its case law based on the Turco case where it had disavowed the General Court when the latter requested that the public interest cited to justify disclosure differed from the principle of transparency. But the Court of Justice backed down in this case when it admitted that an interest in transparency could be taken into account, provided that it was ‘particularly pertinent’[99].
The caution exercised by the Court of Justice when the matter relates to its own activities is still noticeable. While some doubt may be cast over the breach of the equality of arms highlighted by the Court of Justice in justifying a presumption of confidentiality, on the other hand, it is obvious that this solution overturns the rule of general access presented in Article 6 of the regulation. If this was to be the solution, it was better therefore to exclude this type of document completely from the scope of the regulation or, at the very least, adhere to the opinion of the Advocate General that only the Court of Justice could make a decision on disclosure[100].

- Legal opinions

Two extremely important cases from the Court of Justice are transforming the case law system. In the case Turco v Council[101], the Court of Justice outlines an ambitious frame of reference with regard to the confidentiality of legal opinions, which means that documents may be disclosed, in principle. It therefore overturns the presumption of confidentiality associated with these documents. This openness is confirmed by the MyTravel case.
The Turco judgment is a leading case. The Court of Justice annulled the ruling of the CFI[102], thereby protecting the confidentiality of an opinion issued by the Council Legal Service, on the grounds that disclosure might have left the legality of the relevant legislative act in doubt.
Firstly, the Court interpreted the exception as ‘aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice’[103]. Claiming on a general, abstract basis that disclosure could raise doubts about the legality of legislative acts could not provide justification in itself for refusal to disclosure.
On a formal note, it stated that ‘it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole’[104]. It added harshly that these doubts would not arise if the statement of reasons for that act was reinforced, so as to make it apparent why an unfavorable opinion was not followed.
It then introduced a line of argument based on ‘general presumptions’, likely to favor disclosure or not, which is confirmed later on: ‘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[105].’
This analysis allows it to outline the limits in terms of confidentiality by making a significant distinction between opinions relating to legislative matters and others. For this to happen, the specific interest protected by non-disclosure must be balanced with the general interest regarding transparency.
It is the duty of the institution receiving a request to disclose a document to establish whether it considers that disclosing this document would breach the protection of the legal opinions, and that there is no overriding public interest justifying its disclosure. These considerations are ‘of particular relevance’ where the Council is acting in its legislative capacity.
This has given rise to the following solution: Regulation (EC) No 1049/2001 ‘imposes 1⁄4 in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process. That finding does not preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being of a particularly sensitive nature or having a particularly wide scope that goes beyond the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal’[106].
The MyTravel Group [107]judgment provides additional clarification regarding legal opinions issued in an administrative context, in relation to a refusal to grant access to the competition authorities’ file concerning the follow-up action to a judgment issued by the Court of Justice.
Firstly, the Court dismissed the argument that the Turco case would only relate to ‘legislative matters’ and it emphasized that ‘the administrative activity of the institutions does not escape in any way from the scope of Regulation No 1049/2001’[108].
It then repeated its argument based on Turco in relation to the benefits of transparency and the way in which it reinforces the legitimacy of the Union’s action. In any case, as the procedure was closed, there was no longer any risk that disclosure of the opinion would affect the decisions likely to arise between the same parties or in the same sector[109].
Therefore, combining both these decisions defines the current state of substantive law.

O Inspections, investigations and audits

This exception has extensively been the subject of case law, mentioned during the period being examined, as well as of conventional cases where it has been applied[110]. It has led the Court of Justice to clarify the relationship between a general regulation and a specialised regulation and, as part of this, to restrict the open-mindedness that it had shown.
The judgment issued by the CJEU on the Technische Glaswerke Ilmenau[111] case was the first practical application based on case law of ‘general presumptions’, confirmed in the judgment from the case, and which may ultimately curtail the application of the right of access. In this case, the Court of Justice disavowed the General Court, which had requested access to documents relating to procedures for reviewing State aid.
In its view that this framework differs from that for the institutions’ legislative activities, the Court complained that the General Court failed to consider that the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file.
This ‘fact’[112], linked to the interaction of two competing regulatory systems, one for access to documents and the other for reviewing State aid, influenced the interpretation of the exception stipulated by Regulation (EC) No 1049/2001, thereby undermining the second one. It explained ‘the existence of a general presumption’ that disclosure of documents in the administrative file would in principle undermine the protection of the objectives of investigation activities. This presumption is not absolute and may be overturned if there is an overriding public interest[113].
This interpretation in favor of ‘general presumptions, also applies in the case of merger control proceedings. This is the conclusion which must be drawn from the two judgments issued on 28 June 2012[114] in the Odile Jacob and Agrofert cases. In the view of the Court, providing third parties with excessive access to the documents exchanged as part of the Commission carrying out merger control procedures was liable to ‘jeopardise the balance which the European Union legislature sought to ensure in the merger regulation between the obligation on the undertakings concerned to send the Commission possibly sensitive commercial information to enable it to assess the compatibility of the proposed transaction with the common market, on the one hand, and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission, on the other’[115].
This interaction between general and specific regulations does not always have a negative outcome for the right of access. When the specific regulation provides enhanced protection, as in the case of environmental matters, the judge obviously gives this precedence. For instance, in the case cited above, Stichting Greenpeace Nederland of 8 October 2013[116], the General Court rejected the argument submitted by the Commission on the basis of the Technische Glaswerke Ilmenau case to refuse the disclosure of the requested documents.

O Protection of Union’s decision-making process

Article 4(3) of the regulation defines its two areas: protection is afforded to the institutions’ internal deliberations and workings to the same extent as the decision-making process. The disclosure of the document would need to ‘seriously undermine’ the process to refuse access and not have any ‘overriding public interest’ preventing this.
The Borax ruling is an interesting application in this regard. The Court of First Instance commented in this that Regulation (EC) No 1049/2001 explicitly permits access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the relevant institution. ‘Neither the purely internal purpose of a document nor its use as a document preparatory to the institution’s final decision are therefore, by themselves, grounds for refusing access to the documents applied for[117].’ Furthermore, since the principle of disclosure is involved, ‘in order to refuse the access sought, the institution cannot simply rely on the document’s use for internal purposes or the absence of a decision and thus decide that in those circumstances its decision-making process has been seriously undermined’[118].
The judgment cited above on the MyTravel Group [119]case clarifies this issue once and for all, regarding the protection both of the Commission’s internal consultations and the decision-making process. This also included its political aspect. In this regard, Advocate General Kokott emphasized that the main intention of the Union’s legislature in 2001 was to exercise minimal transparency in these phases, contrary to the opinion of the Commission.
Therefore, this put at stake an administrative ‘internal space to think’ requested by the institutions as a way of departing from the principle of transparency.
The Court adhered to the arrangement in Article 4(3), which makes a distinction according to whether the decision has been adopted or not. When the procedure has been closed, the exception covers ‘only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned’[120].
It believed that ‘the Union legislature took the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process’. The refusal to disclose such a document could not be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question.
This is the contribution made by this judgment: the arguments justifying a refusal must be based on ‘specific reasons’[121] which do not permit disclosure when the process has been ended.
Furthermore, even if the relevant documents did come under the scope of the exception relating to internal documents, failure to prove that there were grounds for fearing that the decision-making process would be undermined warrants the same criticism.
The Court has just reinforced its position with a major argument in a judgment issued on 17 October 2013 in the case Council v Access Info Europe[122], by rejecting an appeal lodged by the Council, with the support of three Member States.
In fact, the General Court had issued a ruling[123] in favour of granting access to data relating to the identity of a Member States, after tabling legislative amendments precisely when Regulation (EC) No 1049/2001 was being revised(!). In support of its appeal, the Council cited the exception in Article 4(3) to protect the national delegations’ ‘room for manoeuvre’ in their quest for a compromise due to the sensitive nature of the proposals submitted by the representatives of the Member States. This was the reason for its refusal to have a note from the Council’s Secretariat General disclosed as part of a legislative procedure and more especially, the identity of the relevant Member States.
The General Court had taken the opposite view, ‘particularly in the light of the importance for European Union citizens of the questions debated and the lack of any other evidence in the file showing the reactions of Member State delegations, the media and the public’[124].
The Advocate General was also inclined towards this view. In his opinion, the Council ‘acting in its legislative capacity’ could not hide behind the transparency desired by recital 6 of the regulation and used by the Turco case. Asserting legitimately that ‘openness is an inherent part of the working method of a legislature’, the Advocate General rightly emphasised that, in this case, the public interest provided by transparency would almost naturally take precedence a priori, even if it is an exception to the protection of confidentiality. ‘Access to this information serves in a direct way to satisfy the ultimate purpose of the legislative procedure, namely to give democratic legitimacy to the legislation that emerges from that procedure[125].’
The Court confirmed this approach wholeheartedly. First and foremost, it challenged the notion that the protection of confidentiality would require ‘guaranteeing a negotiation space’, desired by the Council. After recalling the basic principles of its case law, it emphasised its ‘particular relevance where the Council is acting in its legislative capacity’[126]. Without denying the need to strike a balance between the principle of transparency and maintaining an effective decision-making process, the Court of Justice remarked that disclosure of the identity of the Member States participating in the legislative procedure did not give rise to a ‘genuine risk of seriously undermining the [Council’s] decision-making process’. In fact, since Regulation (EC) No 1049/2001 ensured ‘the widest possible access’, such a risk alone was likely to justify either restricted access or a refusal to grant access, if it was not hypothetical. The risk of harm alone could not be enough to justify a refusal to grant access.
Therefore, the general interest in obtaining access to the documents took precedence a priori, with the identity of the Member States participating in the legislative process featuring as an aspect of democratic transparency.
 

(…)

[1] ‘Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001’, PE 393.287, 2008 and ‘Classified information in light of the Lisbon Treaty’, PE 425.616, 2010.
[2] Specific reference will be made to our studies ‘Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001’, PE 393.287, 2008 and ‘Classified information in light of the Lisbon Treaty’, PE 425.616, 2010.
[3] Code of Conduct concerning public access to Council and Commission documents, OJ L 340 31.12.1993, p. 37.
[4] OJ L 145, 31.05.2001, p. 43.
[5] COM(2001) 428.
[6] A. Allemano, ‘Unpacking the principle of openness in EU Law, transparency, participation and democracy’, European Law Review 2014 (forthcoming).
[7] J. Mendes, ‘Participation and the rôle of law after Lisbon: a legal view on article 11 TEU’, CMLRev 2011.1849.
[8] ECJ, 1 July 2008, Kingdom of Sweden and Turco v Council, C-39/05 P and 52/05P, paragraph 59.
[9] M. Hillebrandt, D. Curtin, A. Meijer, ‘Transparency in the Council of ministers of the EU: institutional approach’, Amsterdam Centre for European law, Working paper 2012-04.
[10] CFI, 25 April 2007, WWF European Policy Programme/Council, T
264/04, paragraph 61.
[11] CFI, 17 June 1998, Svenska journalistförbundet v Council, T-174/95, ECR II-2289 paragraph 66; CFI, 14 October 1999, Bavarian Lager/Commission, T
309/97, ECR II3217, paragraph 36.
[12] CFI, 7 February 2002, Kuijer/Council, T-2011/00, paragraph 52 and ECJ, 6 March 2003, Interporc/Commission C
41/00 P, ECR p. I2125 paragraph 39.
[13] ECJ, 7 December 1999, Interporc v Commission, paragraph 39.
[14] Opinion of Tesauro under ECJ, 30 April 1996, Netherlands v Council, C-58/94, ECR I-2169 paragraph 14.
[15] D. Curtin, ‘Judging EU secrecy’, Amsterdam Centre for European law, Working paper 2012-07.
[16] See A. Meijers, ‘Understanding the Complex Dynamics of Transparency’, and S. Castellano et A. Ortiz, ‘Legal Framework for e-transparency and the right to public access in the EU’, Transatlantic Conference on Transparency Research, Utrecht, 2012.
[17] The analysis will continue to focus on Regulation (EC) No 1049/2001, apart from provisions relating, for example, to environmental law.
[18] ECJ, 30 April 1996, Netherlands v Council, C-58/94, ECR I-2169 paragraph 34.
[19] ECJ, 18 December 2007, Kingdom of Sweden v Commission, C-64/05, ECR I-11389, paragraph 54.
[20] id paragraph 46; see also CJEU, 17 October 2013, Council v Access Info Europe, C-280/11 P.
[21] In spite of the calls of some of its Advocate Generals or the positions of the CFI: Advocate General Tesauro speaks of a ‘fundamental civil right' in the case Netherlands v Council (paragraph 19) and the CFI talks about a ‘principle of the right to information’ (CFI, 19 July 1999, Hautala v Council, T
14/98, ECR. p. II 2489, paragraph 87) or of the ‘principle of transparency’ (CFI, 7 February 2002, Kuijer v Council, T211/00, ECR p. II485, paragraph 52).
[22] Opinion of Maduro under ECJ, 18 December 2007 cited above, ECR I-11389, paragraph 40.
[23] By mentioning its extension to the ‘bodies and agencies’ of the EU.
[24] Opinion of Maduro under ECJ, 18 December 2007 cited above, ECR I-11389, paragraphs 40-42.
[25] GC, 29 November 2012, Gaby Thesing v ECB, T-590/10 paragraphs 72-73.
[26] ‘For the purpose of this paragraph, the Council shall 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 those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public.
[27] Acknowledged by the Council in its 2012 annual report on exercising the right of access, p.7.
[28] COM(2011) 73.
[29] For a more in-depth look at the regulatory framework and the associated case law up until 2008, refer to our study ‘Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001’, PE 393.287, 2008.
[30] CJEU, 21 July 2011, Sweden and MyTravel v Commission, C-506/08 P cited above, paragraph 73 and CJEU, 17 October 2013, Access Info Europe, C-280/11 P cited above, paragraph 28.
[31] Reference should be made, on this point, to the provisions of Regulation (EC) No 1367/2006 regarding access to environmental information, which apply to all EU institutions and bodies. This regulation has just been clarified in a totally relevant manner by the General Court, which objects to an attempt by the Commission, ‘by its line of argument’ not to ‘ensure a consistent and harmonious interpretation of Regulation No 1049/2001 and Regulation No 1367/2006 with the provisions of the Charter ...', GC, 8 October 2013, Stichting Greenpeace Nederland et PAN v Commission, T-545/11, paragraph 44.
[32] Some of these provisions may also be aimed at harmonising national law, which is excluded on the basis of Article 15 TFEU.
[33] Source: O'Neill, B., Livingstone, S., & McLaughlin, S: COM(2007) 185, Green Paper: Public Access to Documents held by institutions of the European Community, A review, p.10.
[34] See our study cited above ‘Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001’, PE 393.287, 2008.
[35] It presents details about the applicants: the automatic involvement of the Nordic states, especially Sweden, in support of the applicants is in contrast to the restrictive view developed jointly by the Council and Commission, frequently supported by France and Germany.
[36] ECJ, 1 July 2008, Kingdom of Sweden and Turco v Council, C-39/05 P and 52/05 P.
[37] ECJ, 18 December 2007, Kingdom of Sweden v Commission, C-64/05 P, paragraph 66; ECJ, 1 July 2008, Kingdom of Sweden and Maurizio Turco v Council, C-39/05 P and C-52/05 P, paragraphs 34, 35 and 36; see also ECJ, 1 February 2007, Sison/Council, C-266/05 P, ECR p. I-1233, paragraph 63.
[38] See also: ECJ, 18 December 2007, Sweden v Commission, C-64/05 P, paragraph 66, and of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, paragraph 36.
[39] The only circumstance that a document relates to an interest protected by an exception would not be sufficient to justify applying the latter (CFI, 13 April 2005, Verein fur Konsumenteninformation v Commission, T-2/03, paragraph 69).

(…) 

[92] GC, 3 October 2012, Jurašinović v Council, T-63/10.
[93] CJEU, 21 September 2010, Kingdom of Sweden and ASBL (API) v Commission, C-514/07 P, C-528/07 P and C­ 532/07 P.
[94] Paragraph 84.
[95] Paragraph 94.
[96] CJEU, 29 June 2010, Commission/Technische Glaswerke Ilmenau, C-139/07 P, paragraph 62.
[97] Paragraph 103.
[98] Paragraph 130.
[99] Paragraph 152 ff.
[100] Opinion of Maduro, paragraph 39.
[101]CJEU, 1 July 2008, Sweden and Turco v Council, C-39/05 and C-52/05, ECR I-04723.
[102] CFI, 23 November 2004, Sweden and Turco v Council, T-84/03, ECR II-4061; confirming our analysis, Parliament study cited above.
[103] Paragraph 42.
[104] Paragraph 59.
[105] Paragraph 50.
[106] Paragraph 68 ff.
[107] CJEU, 21 July 2011, Sweden and MyTravel Group, C-506/08 P.
[108] Paragraph 109.
[109] Paragraphs 115 and 116.
[110] For example, CJEU, Pfeiderer, 14 June 2011, C-360/09; GC, EnBW Energie Baden-Württemberg AG v Commission, T-344/08; GC, 15 January 2013, Guido Strack v Commission, T-392/07.
[111] CJEU, 29 June 2010, Commission v Technische Glaswerke Ilmenau, C-139/07 P, ECR I-05885.
[112] Paragraph 58.
[113] Paragraph 68.
[114] CJEU 28 June 2012, Commission v Editions Odile Jacob SAS, case C-404/10 P; CJEU 28 June 2012, Commission v Agrofert Holding a.s., case C-477/10 P.
[115] Paragraph 121.
[116] GC, 8 October 2013, Stichting Greenpeace Nederland and PAN Europe / Commission T-545/11.
[117] Paragraph 101.
[118] Paragraph 92.
[119] CJEU, 21 July 2011, Sweden and MyTravel Group, C-506/08 P.
[120] Paragraph 78.
[121] Paragraph 82.