How wide is "the widest possible"? Judicial interpretation of the exceptions to the right of access to official documents revisited

Common Market Law Review

Volumn 46, Issue 2, 2009, Pages 521-549

  Adamski, Dariusz ^a  

^a UNIVERSITY OF WROC AW   (Poland)

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EID: 67649395777     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (83)

1. 20 April 2009, COM (2008) 299 final - COD 2008/0090.
2. Diamandouros, "Contribution of the European Ombudsman, P. Nikiforos Diamandouros, to the public hearing on the Revision of Regulation 1049/2001 on public access to documents", speech delivered in the European Parliament on 2 June 2008; Hustinx, "EDPS Opinion on access to EU documents: a right balance between public access and data protection has to be secured", 30 June 2008; Peers, "Statewatch Analysis of the Proposal on access to documents: Article-by-Article"; all available from www.statewatch.org/foi/foi.htm.
3. Preamble to Regulation 1049/2001 claims that: "Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system" (para 2), O.J. 2001, L 145/43.
4. Another issue regards the amount of work involved in carrying out a concrete, individual examination in application to access a very long document or to a very large number of documents. Art. 6(3) Regulation 1049/2001 provides merely that, in such a situation "the institution concerned may confer with the applicant informally, with a view to finding a fair solution" In Case T-2/03, Verein für Konsumenteninformation v. Commission, [2005] ECR II-1121, however, the CFI pronounced it as another category of exceptions. The decision, confirmed recently by the CFI in Case T-42/05, Williams v. Commission, judgment of 10 Sept. 2008, nyr, paras. 84-92, will not be discussed further, having already been comprehensively analysed by others: Heliskoski and Leino, "Darkness at the Break of Noon: The Case Law on Regulation No. 1049/2001 on Access to Documents," 43 CML Rev. (2006), 735-781, at 756-760, Kranenborg, "Is it Time to Revise the European Regulation on Public Access to Documents?", 12 EPL (2006), 251-274, at 267-271, Flanagan, "EU Freedom of Information: Determining where the Interest Lies", 13 EPL (2007), 595-632, at 611-613.
5. In Joined Cases T-110, 150 & 405/03, Sison v. Council, [2005] ECR II-01429, para 46; Case C-266/05 P, Sison v. Council, [2007] ECR I-01233, paras. 34 and 64 the Courts decided that "in areas covered by the mandatory exceptions to public access to documents, provided for in Article 4(1)(a) of Regulation No. 1049/2001, the institutions enjoy a wide discretion." The wide discretion statement corresponds with the political responsibilities theme of Case T-211/00, Kuijer v. Council (Kuijer II), [2002] ECR II-485, para 53: "When the Council decides whether the public interest may be undermined by releasing a document, it exercises a discretion which is among the political responsibilities conferred on it by provisions of the Treaties.".
6. Case T-14/98, Hautala v. Council, [1999] ECR II-2489.
7. An expression used by Schermers and Waelbroeck for describing this type of judicial review limitation. See Schermers, Waelbroeck, Judicial Protection in the European Communities, 5th ed. (Kluwer Law and Taxation Publishers, 1992), pp. 181-184.
8. Hautala, cited supra note 6, para 72.
9. Case 42/84, Remia BV v. Commission, [1985] ECR 2545, para 34.
10. Fundamentality of the access right was recognized by the Charter of Fundamental Rights of the European Union (cf. infra note 25) and (cautiously) confirmed by the CFI in Joined Cases T-3 & 337/04, Pitsiorlas v. Council and ECB, judgment of 27 Nov. 2007, nyr, para 231.
11. Cf. Case C-351/04, Ikea Wholesale Ltd v. Commissioners of Customs & Excise, [2007] ECR I-7723.
12. Constant line of jurisprudence, stemming from Case T-105/95, WWF UK v. Commission, [1997] ECR II-313, para 65.
13. Cf. Case C-41/00 P, Interporc Im- und Export GmbH v. Commission, [2003] ECR I-2125 (Interporc II), para 55, Case T-204/99, Mattila v. Council and Commission, [2001] ECR II-2265, para 64.
14. Kuijer v. Council (Kuijer II), cited supra note 5.
15. Joined Cases T-110, 150 & 405/03; confirmed in Case C-266/05 P, both cited supra note 5
16. Opinions advocating a more demanding examination standard in cases involving sensitive documents have been voiced: Heliskoski and Leino, op. cit. supra note 4, 735-781, at 755; Curtin, "Citizens' Fundamental Right of Access to EU information: An Evolving Digital Passepartout", 37 CML Rev. (2000), 7-41, at 25. Indeed, a comparable system, the U.S. Freedom of Information Act (FOIA, 5 U.S.C. para 552, as amended by the 1974 FOIA Amendment - Pub. L. No. 93-502, 88 Stat. 1561) provides that the so-called No. 1 Exception (referring to the national defence or foreign policy) covers only the records "in fact properly classified" pursuant to the relevant Executive order (para 552(b)(1)(B). The Executive Order (No. 13,292, 3 C.F.R. 196 (2003)) reserves the classification comparable to that used in Sison ("Confidential") for cases where unauthorized disclosure "reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe" (at 197). The courts, however, avoid inquisitive reviews, satisfying themselves with government assertions - Samaha, "Government Secrets, Constitutional Law, and Platforms for Judicial Intervention", 53 UCLA L. Rev. (2006), 909-976 at 939-941. Being as it is, the latter does not seem to thwart the accountability potential of the legal arrangement entirely, because the executive branch is aware that even the classified documents can be fully reviewed by the judiciary.
17. Case T-264/04, WWF European Policy Programme v. Council (WWF EPP), [2007] ECR II-911.
18. On the basis of Arts. 65(b), 66(1) and 67(3), third subpara, of the Rules of Procedure of the Court of First Instance, O.J. 1991, L 136/1. The most important for the current discussion, Art. 67(3), third subpara, of the Rules of Procedure states that: "Where a document to which access has been denied by a Community institution has been produced before the Court of First Instance in proceedings relating to the legality of that denial, that document shall not be communicated to the other parties." Only in four cases has the CFI used the procedural means to verify confidential documents under dispute in access cases: Joined Cases T-391/03 & T-70/04, Franchet and Byk v. Commission, [2006] ECR II-2023, para 36; Case T-194/04, Bavarian Lager v. Commission (Bavarian Lager II), judgment of 8 Nov. 2007, nyr.; Case T-380/04, Terezakis v. Commission, judgment of 30 Jan. 2008, nyr., para 21; Williams v. Commission, cited supra note 4, para 29. On the other hand, in Case C-266/05 P, Sison v. Council, cited supra note 5, the ECJ was of a questionable opinion that Art. 67(3), third subpara, of the Rules of Procedure "cannot have any relevance whatever for the purpose of defining the limits of the scope of the judicial review incumbent on the Community Courts under the EC Treaty" (para 39). Apparently closer to the mark was A.G. Poiares Maduro in his Opinion of 29 Nov. 2007 to Joined Cases C-39 & 52/05 P, Sweden and Turco v. Council: "Effective judicial review will normally require the Court of First Instance to have become aware of the content of the legal advice in question, whilst keeping it confidential from the applicant, as permitted under Article 67(3) of its Rules of Procedure" (para 56).
19. Pitsiorlas v. Council and ECB, cited supra note 10. Currently under appeal (C-84/08 P).
20. Art. 23(3) of the Rules of procedure of the European Central Bank of 7 July 1998, O.J. 1998, L 338/28 (hereinafter: EBC Rules of procedure). Substantially identical is Art. 23(3) of the Rules of procedure currently in force: Decision 2004/257/EC of the European Central Bank of 19 Feb. 2004 adopting the Rules of Procedure of the European Central Bank (ECB/2004/2), O.J. 2004, L 80/33.
21. Bavarian Lager II, cited supra note 16. Currently under appeal (Case C-28/08 P).
22. Case T-309/97, Bavarian Lager v. Commission, [1999] ECR II-3217 (Bavarian Lager I).
23. O.J. 2001, L 8/1.
24. Another argument, referring to the purpose of investigation, will be discussed in section 3.4 infra.
25. O.J. 2000, C 364/1. Arts. 8 and 42, respectively.
26. The Preamble to Regulation 1049/2001 explicitly provides that "in assessing the exceptions, the institutions should take account of the principles in Community legislation concerning the protection of personal data" (para 11).
27. Cf. also Kranenborg, "Access to documents and data protection in the European Union: On the public nature of personal data", 45 CML Rev. (2008), 1079-1114.
28. Also in Case T-123/99, JT's Corporation v. Commission, [2000] ECR II-3269, the Court noted that the lex specialis interpretation cannot lead to curtailing the access right (para 50). To the same effect see Case T-36/04, Association de la presse internationale ASBL (API) v. Commission, judgment of 12 Sept. 2007, nyr., para 89 and Case T-403/05, MyTravel Group plc v. Commission, judgment of 9 Sept. 2008, nyr. A different position was assumed, however, in a case in which the dispute regarded a provision of an annex to the Staff Regulations, requiring that proceedings of the Selection Board remain secret - Case T-371/03, Le Voci v. Council, [2005] ECR II-957. The Court did not hesitate to state that: "Like any general rule, the right of access to Council documents provided for in the provisions cited above may be limited or excluded - according to the principle that a special rule derogates from the general rule (lex specialis derogat legi generali) - where there are special rules governing specific matters" (para 122).
29. Only the complainant enjoys it in Art. 226 EC investigations (procedure for failure to fulfil obligations) - para 154.
30. When developing the standard in Verein für Konsumenteninformation, cited supra note 4, the Court was explicit that it is to apply both to mandatory and discretionary exceptions (para 74). The decision in this case, however, boiled down to interpretation of Art. 6(3) of the Regulation (application relating to a very long document or to a very large number of documents), and answering the question of how to reconcile the interests presented by the applicant with those of good administration (paras. 101-102). This balancing feature might be the reason why the standard has become a crux of each subsequent discretionary exception case, while not having been applied in a fully-fledged version to any of the mandatory exceptions cases.
31. Verein für Konsumenteninformation, cited supra note 4, para 69, rephrasing Case-188/98, Kuijer v. Council, [2000] ECR II-1959, para 38. For the latest account see Terezakis, cited supra note 18, para 54.
32. Verein für Konsumenteninformation, cited supra note 4, para 70.
33. Ibid., para 75.
34. Terezakis, cited supra note 18.
35. API, cited supra note 28. Currently under appeal (Cases: C-514/07, C-528/07, C-532/07, all pending).
36. When considering whether access to documents may be precluded by the national court proceedings interest, the institutions should ensure that disclosure does not constitute an infringement of national law. In this regard they ought to consult the national court and refuse access only if that court objects to the disclosure - Joined Cases C-174 & 189/98 P, Netherlands and Van der Wal v. Commission, [2000] ECR I-1, para 28; Franchet and Byk, cited supra note 18, para 98.
37. Both concerned references for preliminary rulings, where proceedings had been either closed, despite the fact that the case was formally still open at the time of the request, or closed with a judgment. The different treatment of the pleadings in these two cases stemmed from the nature of the action (the Commission found requests for preliminary rulings incomparable with direct actions), and the stage reached (closure of oral proceedings); API para 69.
38. In Case T-92/98, Interporc v. Commission (Interporc II), [1999] ECR II-3521, the Court explained that "the expression 'court proceedings' must be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of documents drawn up by the Commission solely for the purposes of specific court proceedings", ibid. para 40.
39. Case T-174/95, Svenska Journalistförbundet v. Council, [1998] ECR II-2289, para 136.
40. Netherlands and Van der Wal v. Commission, cited supra note 37, especially para 30.
41. There was, therefore, no countervailing norm to Art. 5(3), first sentence, of the Instructions to the Registrar of the Court of First Instance of 3 March 1994, O.J. 1994, L 78/32, with subsequent amendments: "No third party, private or public, may have access to the case-file or to the procedural documents without the express authorization of the President, after the parties have been heard.".
42. Ironically, the main issue of the case regarded access to certain documents concerning the Europol simultaneously from Swedish authorities and the Council, in order to compare openness of the access systems. In response the applicant received 18 out of 20 requested documents (some of which were redacted) from Swedish authorities, while inquiry targeting the Council initially brought about an exactly adverse result - access to 18 out of 20 documents was entirely refused. To justify the refusal, the Council claimed public security reasons, while the Swedish Government invoked only the need to protect confidentiality of negotiating positions.
43. As the Court noted in this respect: "In addition to possible pressure on its agents, those criticisms and objections could in particular have the effect of imposing an additional task on the Commission, since it might consider itself obliged to take account of them in the defence of its position before the court", API, para 78.
44. Harlow, Accountability in the European Union (Oxford University Press, 2002).
45. For an account on legitimacy (formal/social, input/output), from the perspective of access to documents, see Best, "Transparency and European Governance: Clearly not a simple matter" in Deckmyn (Ed.), Increasing Transparency in the European Union (European Institute of Public Administration, Maastricht, 2002), pp. 93-95.
46. See Art. 40(2) ECHR, and the ECtHR jurisprudence cited in API, cited supra note 28, para 90.
47. Art. 56(2) of the Rules of Procedure of the Court of Justice, and Art. 57 of the Rules of Procedure of the Court of First Instance provide: "The oral proceedings in cases heard in camera shall not be published." The solution proposed would require a decision of the President concerning the nature (public/confidential) of the proceedings each time the institution being a party to it receives a request for access to documents.
48. Case T-84/03, Turco v. Council, [2004] ECR II-04061.
49. Joined Cases C-39/05 P & C-52/05 P, Sweden and Turco v. Council, cited supra note 18.
50. Delivered on 29 Nov. 2007.
51. In a recent judgment, MyTravel Group, cited supra note 28, the CFI endorsed an unrestrained legal advice exception again, yet restricting its position to documents produced within the administrative procedure. Its view was based on the argument that "to accept that the notes in question should be disclosed would be liable to lead the legal service to display reticence and caution in the future in the drafting of such notes in order not to affect the Commission's decision- making capacity" (para 125).
52. JT's Corporation, cited supra note 28, para 50.
53. In API the ECJ explicitly made the case for applying the reasonable foreseeability test (para 43).
54. Heeding that legal advice, in a narrower form (more precisely, that fitting into the systemic assumptions of Reg. 1049/2001), is also protected by the court proceedings and the internal-use documents exceptions.
55. This argument is magnified by Regulation 1049/2001 itself. Para 6 of its Preamble provides: "Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity.".
56. Franchet and Byk, cited supra note 18, paras. 109-118.
57. Case T-20/99, Denkavit Nederland v. Commission, [2000] ECR II-3011, paras. 47-49.
58. Case T-237/02, Technische Glaswerke Ilmenau v. Commission, [2006] ECR II-5131, para 89.
59. Terezakis, cited supra note 18.
60. The issue was discussed by the Court in the context of a plea in law alleging infringement of Art. 4(6) Regulation 1049/2001, which regarded partial access. In fact, however, it is more informative for the scope of the access exception regarding pending audits.
61. The Commission declared it would make the documents available after the audit was completed (para 134).
62. See e.g. Bavarian Lager I, cited supra note 22, para 46.
63. The conclusion drawn in Case T-191/99, Petrie and Others v. Commission, [2001] ECR II-3677, para 68.
64. API, cited supra note 28.
65. By the same token the CFI refuted arguments of the Commission, according to which the exception should stand until it decides on any post-judgment steps (pursuant to Art. 228(2) EC). In API the Court observed that it "would make access to those documents dependent on uncertain events" (para 139).
66. Franchet and Byk, cited supra note 18, para 125.
67. MyTravel Group plc v. Commission, cited supra note 28.
68. Case T-342/99, Airtours v. Commission, [2002] ECR II-2585.
69. Paras. 94-101, 104-106, 110-111, 115-116.
70. Case T-144/05, Muñiz v. Commission, judgment of 18 Dec. 2008, nyr. It concerned the Commission's refusal to grant access to certain internal documents of the Working Group of the 'Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)' of the Customs Code Committee.
71. Declaration No. 35 annexed to the final act of Amsterdam.
72. Case T-76/02, Mara Messina v. Commission, [2003] ECR II-3203, para 41, Case T-168/02, IFAW v. Commission, [2004] ECR II-4135, para 57.
73. IFAW, cited supra note 74, para 58.
74. Established within the previous access regime and deleted from the Regulation, the rule proclaimed that the European institutions could not disclose documents originating from third parties even if these were possessed by the European institutions. Cf. also Case T-47/01, Co-Frutta v. Commission, [2003] ECR-II 4441, para 59, where the CFI characterized the authorship rule as "an absolute and unqualified exception for documents authored by a third party.".
75. Sweden, Finland, Denmark and the Netherlands, respectively.
76. Case C-64/05 P, Sweden v. Commission, judgment of 18 Dec. 07, nyr. Annotated by Leino, 45 CML Rev., 1469-1486.
77. Opinion delivered on 18 July 2007.
78. I.e. fifteen working days from registration of the application (Art. 7(1) of Reg. 1049/2001), with a possibility of extending the period by another fifteen days when the application regards a very long document or a very large number of documents (Art. 7(3) of Reg. 1049/2001).
79. For a very similar position see: Harden, "Citizenship and Information", 7 EPL (2001), 165-193, at 192: "An interpretation that would be consistent with the overall scheme of regulation is that the Institutions must take into account the views of the Member States." It is placed in between the veto power, as reshaped by the ECJ, and the Opinion of A.G. Poiares Maduro, who proposed replacing the veto power interpretation with a consultation mechanism slightly reinforced compared to the mere consultation with third parties pursuant to Art. 4(4) of Regulation 1049/2001. The A.G. advised, first, that the Member State's request should trigger the consultation even if "it is clear that the document shall or shall not be disclosed" (i.e. when the institution would not have to consult other third parties) - para 48. Second, the Member States should, according to the A.G., be free to invoke the interests stemming from the national law (para 50). Both mechanisms, however, refer to situations when allowing the Member State to take a position can hardly influence the position of the institution. In the first situation, the institution would be convinced whether to disclose a document regardless of the consultation. In the second one the institution could accept the national legislation grounds only when they are translatable into terms of Art. 4(1)-(3) of Regulation 1049/2001, if the access decision of the institution is to be based on the Community act and reviewed by the Community Courts.
80. Considering that the Courts find themselves generally poorly positioned for undertaking the balancing.
81. The tendency seems to strengthen. In the latest case, Williams v. Commission, cited supra note 4, when upholding the exception regarding the protection of the decision-making process, the CFI noted merely that the disputed documents were covered by the exception (para 125). No further elucidation on this point was given.