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 II‐3217, 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. I‐2125
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, T‐211/00, ECR p. II‐485, 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.