Just a little sunshine in the rain: The 2010 case law of the European court of justice on access to documents

Common Market Law Review

Volumn 48, Issue 4, 2011, Pages 1215-1252

  Leino, Päivi ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

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EID: 80051577373     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (66)

1. European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001, O.J. 2001, L 145/43.
2. For a useful summary, see e.g. Case T-36/04, API v. Commission, [2007] ECR II-3201, paras. 51-56.
3. P6_A(2006) 052
4. Green Paper "Public Access to Documents held by institutions of the European Community - A review", COM(2007)185
5. Proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, 30 April 2008, COM(2008)229 final, 2008/0090 (COD)
6. See "Revision of access rules would boost confidence. Seven ministers call for the EU to make good its commitment to transparency", published in European Voice on 5 March 2009, available at.
7. See the European Parliament resolution on the Commission proposal adopted on 11 March 2009, P6_TA-PROV(2009)0114, and e.g. "Journalists angry over the European Parliament's views on transparency - Swedish Union of Journalists", available at .
8. See "Commissioner Wallströms hits back at critics: 'They can't have read the text'", available at the Wobbing Europe website, .
9. Judgment of the Grand Chamber of 29 June 2010, nyr
10. Judgment of the Grand Chamber of 29 June 2010, nyr
11. Joined Cases C-514/07 P, 528/07 P & 532/07 P, Sweden v. API, API v. Commission, and Commission v. API, judgment of the Grand Chamber of 21 Sept. 2010, nyr.
12. E.g., the proposal to align the Regulation with the provisions on access to environmental information (Reg. 1367/2006 implementing the Aarhus Convention, O.J. 2006, L 264/13) seems to gain widespread support.
13. See e.g. Contribution of the XL COSAC, Paris, 4 Nov 2008, O.J. 2009, C 17/01, expressing "its concerns about the proposal for a regulation regarding public access to documents., which should not limit the access to documents in comparison with the current situation". See also the UK House of Lords European Union Committee, 15th Report of Session 2008-09, Access to EU Documents, Report with Evidence, published 18 Jun 2009; 510th Resolution of the Czech Senate, delivered on the 17th session held on 30 Oct 2008 and arguing that the Commission proposal "is in its essential parts a step backwards which does not contribute to enhancing of the legitimacy of European administration or strengthening of its responsibility towards the public"; Resolution of the Grand Committee of the Parliament of Finland of 17 Oct 2008 emphasizing that "if approved, the Commission's proposal would lead to a major reversal of the Union's transparency and the public's access to documents. The proposal is thus in contradiction to goals that have been repeatedly affirmed by the European Council. The Grand Committee considers it worrying and reproachable that the Commission has advanced in support of its proposal justifications that must be considered untrue and misleading. Such conduct is liable to weaken the Commission's public credibility."
14. Joined Cases C-39 & 52/05 P, Kingdom of Sweden and Maurizio Turco v. Council of the European Union, [2008] ECR 1-4723; annotation by Arnull, 46 CML Rev. (2009) 1219-1238. For a similar logic relating to the transparency of legislative matters, see Case T-233/09 Access Info Europe v. Council, judgment of 22 March 2011, nyr.
15. The Court acknowledged that there might be specific legal opinions whose disclosure could still be refused if they were of a "particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question" (para 69). These exceptions are to be interpreted by the General Court in the pending Case T-452/10, ClientEarth v. Council, O.J. 2010, C 328/37.
16. Adamski, "How wide is the 'widest possible'? Judicial interpretation of the exceptions to the right of access to official documents revisited", 46 CML Rev (2009) 521-549, 536
17. Regulation (EC) 45/2001 of the European Parliament and of the Council of 18 Dec 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, O.J. 2001, L 8/1.
18. Council Regulation (EC) 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty O.J. 1999, L 83/1.
19. Recital 4
20. Communication from the Commission to the European Parliament and the Council. Consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decisionmaking procedures, Brussels, 2.12.2009, COM(2009) 665 final.
21. See Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, 21 March 2011, COM(2011)137 final
22. European Parliament resolution of 17 December 2009 on improvements needed to the legal framework for access to documents following the entry into force of the Lisbon Treaty, Regulation (EC) No 1049/2001, P7_TA(2009)0116
23. Art. 1.
24. Art. 2(1).
25. This was established already in Case C-353/99 P, Council v. Hautala and others, [2001] ECR I-9565.
26. Case T-2/03, Verein für Konsumenteninformation v. Commission, [2005] ECR II-1121.
27. I owe the term, referring to Sweden, Denmark, Finland and the Netherlands, to my former professor, see Harlow, "Transparency in the European Union: Weighing the Public and Private Interest" in Wouters, Verhey and Kiiver (Eds.), European Constitutionalism beyond Lisbon (Intersentia 2009), pp. 209-238, 210.
28. 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, 759.
29. Ruling of 14 Dec 2006 in Case T-237/02, Technische Glaswerke Ilmenau v. Commission, [2006] ECR II-5131.
30. Maes, Deputy Head of Unit, European Commission, Secretariat-General, Directorate for Better Regulation and Institutional Matters, "Increasing the involvement of citizens in decisionmaking. Aims and objectives of the Commission's proposal amending regulation (EC) no 1049/2001 on public access to European Parliament, Council and Commission documents".
31. Paper presented at a Seminar on the reform of the regulation organized on 11 Dec 2008. Contributions are available at .
32. Some of the information would be permanently (up to 30 years) unavailable for the public, namely information gathered from individuals or undertakings under investigative powers and which may only be used for the purpose of the investigation, such as documents seized during inspections or information provided by applicants for immunity or a reduction of fines (leniency scheme)
33. T6-0114/2009
34. A number of Council documents are available on the Statewatch website, .
35. Case T-29/08, Liga para a Protecção da Natureza v. Commission, O.J. 2008, C 79/58.
36. See Case C-477/10 P, by the Commission against the judgment of the GC of 7 July 2010 in Case T-111/07, O.J. 2010, C 328/39.
37. Open skies cases: Case C-466/98, Commission v. United Kingdom, [2002] ECR I-9427, and Cases C-467/98, Commission v. Denmark; C-468/98, Commission v. Sweden; C-469/98, Commission v. Finland; C-471, Commission v. Belgium; C-472/98, Commission v. Luxembourg; C-475/98, Commission v. Austria; C-476/98, Commission v. Germany.
38. Judgment in Case T-36/04, API v. Commission, [2007] ECR II-3201.
39. T6-0114/2009
40. Recital 15 of Regulation No 45/2001 indicates that access to documents, including those containing personal data, is governed by Art. 255 EC, while Recital 11 of Regulation No 1049/2001 underlines that the institutions should take account of the principles in Community legislation concerning the protection of personal data in all areas of activity of the Union.
41. For a discussion of the two regulations, see Kranenborg, "Access to documents and data protection in the European Union: on the public nature of personal data", 45 CML Rev. (2008), 1079-1114.
42. O.J. 1993, L 340/41. In 1997, Bavarian Lager asked the Commission for a copy of the 'reasoned opinion' under the Code of Conduct but was refused. Bavarian Lager brought an action before the General Court against that decision but the action was dismissed. In May 1998 Bavarian Lager addressed a new request to the Commission for access to all of the submissions in the relevant file by 11 named companies and organizations and by three defined categories of person or company. The Commission refused the application on the ground that the Code of Conduct applied only to documents of which the Commission was the author.
43. Case T-309/97, Bavarian Lager v. Commission [1999] ECR II-3217, in which the GC found that the preservation of the aim in question, namely allowing a Member State to comply voluntarily with the requirements of the Treaty, or, where necessary, to give it the opportunity to justify its position, justified, for the protection of the public interest, the refusal of access to a preparatory document relating to the investigation stage of the procedure under ex Art. 169 EC.
44. Reference 713/98/IJH. Bavarian Lager argued that it wished to obtain the names of the delegates of the CBMC who had attended the meeting on 11 Oct 1996 and the names of the companies and any persons who fell into one of the 14 categories identified in the original request for access to documents containing the communications to the Commission under file reference P/93/4490/UK. The Commission indicated to the Ombudsman that, of the 45 letters that it had written to the persons concerned requesting approval to disclose their identities to Bavarian Lager, 20 replies had been received, 14 positive and 6 negative. The Commission supplied the names and addresses of those that had responded positively. Bavarian Lager stated to the Ombudsman that the information provided by the Commission was still incomplete. In his special report of November 2000, the Ombudsman recommended that the Commission should inform the applicant of the names of the CBMC delegates who had attended the meeting and of companies and persons in the 14 categories identified in the original request.
45. Case T-194/04, Bavarian Lager v. Commission, [2007] ECR II-4523.
46. A.G. Sharpston's contribution was, in fact, so original that after its delivery both the Commission and the European Data Protection Supervisor applied for the reopening of the oral procedure, claiming that the Opinion was based on arguments that were not debated either before the General Court or before the Court of Justice. However, the Court found no need to reopen the oral procedure.
47. See "Review of relationship between transparency and data protection more urgent after Court ruling on Bavarian Lager", press release by the European Data Protection Supervisor, 30 June 2010. Available on the EDPS website at
48. Unfortunately, the Grand Chamber has recently delivered another similar ruling relating to the publication of information relating to persons receiving agricultural aid. Joined cases Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v. Land Hessen, Judgment of 9 Nov 2010, nyr. While the ruling as such is better reasoned, the logic behind it seems similar. Common to both cases was that priority was given to the protection of personal data - any personal data - in a situation were a person's personal integrity would not seem to be seriously at risk. In the latter case, the ECJ declared void those provisions hat required the publication of names of natural persons that receive agricultural aid. And the justification? These provisions were in conflict with the right of private life and protection of personal data included in the EU Charter. Again, there was no consideration of the harm caused, and the data was already legally in the public domain.
49. Opinion of the European Data Protection Supervisor on the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents O.J. 2009, C 2/03, para 48.
50. The EDPS referred to Art. 29 Working Party and the Convention of the Council of Europe on Access to Official Documents, which establishes that contracting parties may limit the right of access to official documents to the aim of protecting, inter alia, "privacy and other legitimate private interests".
51. See the European Parliament resolution on the Commission proposal adopted on 11 Mar 2009, P6_TA-PROV(2009)0114, Amendments 90, 96 and 102
52. The Commission Communication of 4 Nov. 2010, COM(2010)609 final, disregards this need; but, see the Council conclusions on the Communication from the Commission to the European Parliament and the Council - A comprehensive approach on personal data protection in the European Union, JHA Council meeting, 24-25 Feb. 2011, preamble, para 7.
53. See e.g. Case T-82/09, Dennekamp v. Parlement, pending, O.J. 2009, C 102/29, which concerns inter alia access to the names of those Members of the European Parliament that are members of the Additional Pension Scheme. The Parliament has based its refusal on Art. 4(1)(b) of Regulation No 1049/2001.
54. In Bavarian Lager, the applicant had lodged a complaint with the Commission, which led the Commission to institute proceedings against the UK. In the context of these proceedings the Commission organized a meeting with UK officials and an interest group. Bavarian Lager had requested the right to attend the meeting, but the Commission refused to grant permission to attend. Later the UK decided to amend its national legislation, which led the Commission to suspend the proceedings. It was only after its avenue as a complainant in the infringement proceedings context had come to an end that Bavarian Lager decided to invoke the rules on public access to request access to documents relating to the meeting which it had not been able to attend. The widest access was granted to Bavarian Lager following its request based on Regulation No 1049/2001, but also a significant amount of time had lapsed from its first requests, the effect of which is difficult to evaluate retrospectively.
55. Council Regulation (EC) No 659/1999 of 22 March1999 laying down detailed rules for the application of Art. 88 of the EC Treaty, O.J. 1999, L 83/1. Art. 20 headed "Rights of interested parties" establishes, in para 1, that any interested party may submit comments following a Commission decision to initiate the formal investigation procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy of the decision taken by the Commission. Under para 2, any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission takes a decision on a case concerning the subject matter of the information supplied, the interested party shall be sent a copy of that decision. Under para 3, at its request, any interested party shall obtain a copy of any decision pursuant to Arts. 4 and 7, Art. 10(3) and Art. 11 of the Regulation.
56. In Case C-266/05 P, Jose Maria Sison v. Council of the European Union, [2007] ECR I-1233, in which the Court upheld the earlier Genera Court ruling, Joined Cases T-110, 150 & 405/03, Sison v. Council, [2005] ECR II-1429, para 43.
57. See Case C-477/10 P, appeal by European Commission against the judgment of the General Court in Case T-111/07, Agrofert, judgment of 7 July 2010, nyr, O.J. 2010, C 328/22.
58. Case T-403/05, MyTravel Group plc v. the Commission, [2008] ECR II-2027.
59. Case 506/08 P, Sweden v. MyTravel and Commission, O.J. 2009, C 55/6, para 8.
60. For a more detailed discussion, see Leino, "Minding the Gap in European administrative law: On lacunae, fragmentation and the prospect of a brighter future", Briefing note prepared for the European Parliament Committee on Legal Affairs, March 2011
61. The document is available on the internet at .
62. Recital 6 and Art. 12(2) of the Regulation, which establishes that "Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent."
63. Preamble, Recital 11
64. Preamble, Recital 2
65. Case T-471/08, Toland v. Parliament, pending, O.J. 2009, C 32/72.
66. Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 Sept. 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, O.J. 2006, L 264/13.