Approximatingaworkable compromise onaccess to official documents: The 2011 developments in the European courts

Common Market Law Review

Volumn 49, Issue 2, 2012, Pages 521-558

  Adamski, Dariusz ^a  

^a UNIVERSITY OF WROC AW   (Poland)

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EID: 84865570817     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (40)

1. Case C-506/08 P, Sweden v. Commission and MyTravel Group plc. (MyTravel), judgment of 21 July 2011, nyr, Case T-233/09, Access Info Europe v. Council, judgment of 22 March 2011, nyr. (appeal pending: Case C-280/11), Case T-250/08, Batchelor v. Commission, judgment of 24 May 2011, nyr, Joined Cases T- 109 and 444/05, NLG v. Commission, judgment of 24 May 2011, nyr, Case T-471/08, Toland v. Parliament, judgment of 7 June 2011, nyr, Case T-29/08, LPN v. Commission, judgment of 9 Sept. 2011, nyr. (appeals pending: Cases C-514/11 P and C-605/11 P), Case T-82/09, Dennekamp v. Parliament, judgment of 23 Nov. 2011, nyr, Case T437/08, CDC Hydrogene Peroxide v. Commission, judgment of 15 Dec., nyr. 2011
2. O.J., L 145/43. 2001
3. Case C-266/05 P, Sison v. Council, [2007] ECR I-01233 - the first judgment of the ECJ based on Regulation 1049/2001.
4. For an account on the 2010 case law see Leino, "Just a little sunshine in the rain: The 2010 Case law of the European Court of Justice on access to documents", 48 CML Rev. (2011), 1215-1252.
5. While Regulation 1049/2001 imposes the obligation of disclosure on the Council, Commission and the Parliament only, Art. 15(1) TFEU requires it to embrace all "the Union's institutions, bodies, offices and agencies". The Commission has proposed to adjust the subject scope of the Regulation to thisTreaty requirement in: 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, 30 March 2011 (COM(2011)137).
6. See also 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
7. 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
8. Council Regulation of 22 March 1999, O.J., L 83/1. 1999
9. Case T-212/03, MyTravel Group plc v. Commission, ECR II-1967. 2008
10. Paras. 94-100, 104-107, 110-112, 115-117.
11. Commission Regulation No. 802/2004 of 7 Apr. 2004 implementing Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings, O.J. 2004, L 133/1. Its Art. 17(3) provides: "The right of access to the file shall not extend to confidential information, or to internal documents of the Commission or of the competent authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competent authorities of the Member States or between the latter".
12. See www.access-info.org
13. Very similar concerns were expressed earlier in the previous decade, in the context of rendering the Council's meetings transparent: "in the Council, nothing will prevent ministers from exchanging points of view within an informal framework, far from the view of the public. The paradox of transparency is that it often produces the opposite effect. Excessive requirements on publicity of deliberation simply encourage the holding of purely formal debates, while the real decision-making takes place beforehand, in another framework": Editorial: "In the meantime ... Further progress in transparency and democracy while the Constitution is dormant", 43 CML Rev. (2006), 1245; "If we open the bargaining-arena to observations of the general public, actual decision-making will evaporate into the corridors and lunchrooms": Peters, "European democracy after the 2003 Convention", 41 CML Rev. (2004), 67.
14. Quite similarly in Case T-174/95, Svenska Journalistforbundet v. Council, [1998] ECR II-2289 the claimant and the public opinion knew the contents of the refused documents when the case reached the Court. The progress in the case law is marked by the fact that in 1998 the EU courts did not have a useful legal standard at its disposal, to ascertain the relationship between the disclosure and the (clearly absent) harm to the interests protected by exceptions. In consequence, the refusal was revoked on procedural grounds, without contributing much to defining the parameters of the access right.
15. Arguably it is also entirely erroneous. To see the point it is worth quoting what two American authors wrote about the abuse of power endorsed by the secret memos of the U.S. Office of Legal Counsel on torture:" ... whenthefederal government acts in our name and for our sake, the public has a heightened interest in disclosure. Examination of the documents that have been released makes it obvious that it was only fear of public revulsion and international condemnation that led to secrecy stamps": Schwarz Jr. and Huq, Unchecked and unbalanced: Presidential power in a time of terror (New Press, .To make it clear - the memos on torture were legal advice of a particularly sensitive nature. 2007), p. 90
16. Phillips, "EU states appeal court ruling on transparency", Euro Observer of 30 June 2011, available at euobserver.com/18/32576.
17. Case C-125/06 P, Commission v. InfrontWMAG, ECR I-1451. 2008
18. Internal Audit Report No. 06/02 of 9 Jan. 2008.
19. The Court applied the same standard, with the same consequences, to the same arguments of the Parliament referred to the decision-making exception (paras. 69-85).
20. Loopholes in the political accountability of the EU executive towards the Parliament, particularly of the Council, trigger an arguably most potent argument for broader transparency of this branch in comparison to the domestic systems of the EU Member States, where the executive is more comprehensively and exhaustively accountable politically to the legislature.
21. O.J. 2006, L 264/13.
22. In particular Art. Regulation 1367/2006, which establishes a presumption of an overriding public interest in disclosure, does not cover - according to its clear wording - "investigations, in particular those concerning possible infringements of Community law". 6(1)
23. The Chamber's composition seems to be the most probable explanation of the variance. Batchelor and Tolandwere judged by Forwood, Dehousse and Schwarcz, with one of the former two judges acting as a rapporteur, while Dennekamp was decided by Forwood, Schwarcz (rapporteur) and Popescu.
24. Regulation 45/2001 of the European Parliament and of the Council of 18 December 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., L 8/1. 2001
25. See e.g. ECtHR, Appl. No. 46809/99, Loiseau v. France (extracts), decision of 18 Nov. 2003.
26. ECtHR, Appl. No. 37374/05, TASZ v. Hungary, judgment of 14 Apr. 2009.
27. This feature differentiated TASZ v. Hungary from ECtHR, Appl. No. 14967/89, Guerra and others v. Italy, judgment of 19 Feb. 1998, where the argument of infringing Art. 10 Convention referred to a refusal of public authorities to produce and publish information on hazards related to the operation of chemical plants. Mainly due to the proactive character of the non-action that Italy was charged with, the ECtHR found a violation of Art. 8 Convention (the right to respect for private and family life) instead of the right to receive information.
28. ECtHR, Appl. No. 31475/05, Kenedi v. Hungary, judgment of 26 May. The Court's argumentation was entirely consistent with TASZ v. Hungary and confirmed the purpose justification of the public watchdogs' right to information. 2009
29. Art. 28(2) Council Regulation (EC) No. 1/2003 of 16 Dec. 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, O.J. 2003, L 1/1, states that the Commission "shall not disclose information acquired or exchanged ... pursuant to this Regulation and of the kind covered by the obligation of professional secrecy". See also Art. 17 Council Regulation (EC) No. 139/2004 of 20 Jan. 2004 on the control of concentrations between undertakings (the EC Merger Regulation), O.J. 2004, L 24/1 and Art. 17 Commission Regulation No. 802/2004 of 7 Apr. 2004 implementing Council Regulation (EC) No. 139/on the control of concentrations between undertakings, O.J. 2004, L 133/1. 2004
30. According to both Art. 19(5) Council Regulation (EC) No. 1225/2009 of 30 Nov. 2009 on protection against dumped imports from countries not members of the European Community, O.J. 2009, L 343/51 and Art. 29(5) Council Regulation (EC) No. 597/2009 of 11 June 2009 on protection against subsidized imports from countries not members of the European Community, O.J. 2009, L 188/93: "The Council, the Commission and Member States, or the officials of any of these, shall not reveal any information received pursuant to this Regulation forwhich confidential treatment has been requested by its supplier, without specific permission from the supplier. Exchanges of information between the Commission and Member States, or any information relating to consultations ... ,oranyinternal documents prepared by the authorities of the Community or its Member States, shall not be divulged except as specifically provided for in this Regulation".
31. Art. 45(1)(1) Council Regulation No. 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters, O.J. 1997, L 82/1: "Regardless of the form, any information transmitted pursuant to this Regulation shall be of a confidential nature, including the data stored in the CIS. It shall be covered by the obligation of professional secrecy and shall enjoy the protection extended to like information under both the national law of the Member States receiving it and the corresponding provisions applicable to Community authorities".
32. Art. 6 of the Annex III (competitions) staff regulations of officials of the European Union: "The proceedings of the selection board shall be secret".
33. Case T-123/99, JT's Corporation v. Commission, ECR II-3269. 2000
34. Limitations to the access right stemming from the personal data protection legislation in particular do not belong to this category, as they leave ample room for reconciling the two legal values in individual cases.
35. For a broader account on the relationship between "the substance" and "the essence" of fundamental rights under the ECHR see in particular: Arai-Takahashi, The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR (Intersentia, 2002), p. 36 et seq.
36. E.g.Art. 9(2-4) Council Regulation (EC) No. 260/2009 of 26 Feb. 2009 on the common rules for imports, O.J. 2009, L 84/1 provide: "Neither the Council, nor the Commission, nor the Member States, nor the officials of any of these shall reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis without specific permission from the supplier of such information. Each request for confidentiality shall state the reasons why the information is confidential. However, if it appears that a request for confidentiality is unjustified and if the supplier of the information wishes neither to make it public nor to authorize its disclosure in general terms or in the formof a summary, the information concerned may be disregarded. Information shall in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information". An identical wording is used in Art. 7(2-3) Council Regulation (EC) No. 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) Nos. 1765/82, 1766/82 and 3420/83, O.J. 1994, L 67/89. For another manifestation of the same scenario see: Joined Cases T-3/00 and 337/04, Pitsiorlas v. Council and ECB, [2007] ECR II-04779, where the GC interpreted the following procedural rule of the ECB: "Public access to documents drawn up or held by the ECB shall be governed by a decision of the Governing Council" (Art. 23(2) of Rules of Procedure of the European Central Bank, O.J. 1998, L 338/28, now Art. 23(2) of the Decision of the European Central Bank of 19 Feb. 2004 No. 2004/257/EC adopting the Rules of Procedure of the European Central Bank, O.J., L 80/33) as in no way restricting the right to access official documents (applied by analogy, as the ECB is not covered by Regulation 1049/2001). 2004
37. A different (Eight) Chamber of the GC, however, strictly followed the presumption of non-disclosure in Joined CasesT-494 to 500and509/08, Ryanair v. Commission, judgment of 10 Dec. 2010, nyr, a dispute about a refusal to disclose State aid review files to a final recipient of the aid.
38. The GC used the presumption of non-disclosure in Case T-111/07, Agrofert Holding v. Commission, judgment of 7 July 2010, nyr. (appeal pending: Case C-477/10) where the access right - stemming from Regulation 1049/2001 - clashed with the requirement of confidentiality established in Art. 17 Regulation No. 802/2004 (Merger Regulation). A month earlier the GC took an opposite position in a strikingly similar case: Case T-237/05, Éditions Odile Jacob v. Commission, judgment of 9 June 2010, nyr. (appeal pending: Case C-554/10 P).
39. It is not only the EU courts that have acted incongruently with TASZ v. Hungary. The same can be said about two recent decisions of the European Ombudsman. Namely, in his decision of 3 May 2011 (Case No. 1735/2010/MHZ) the Ombudsman endorsed a refusal to give access to a State aid reviewfile concerning the Austrian Green Electricity Act. The positionwas explained in terms of Technische Glaswerke, despite the fact that the request was filed by a lawyer working on a draft of a similar act for Poland. In other words, the disclosure was important for a public debate in one of the Member States and the request was filed in order to contribute to this debate. Even more dubiously, the Ombudsman sided with the Parliament refusing an Italian journalist access to statistics on absences of MEPs due to medical grounds (Case No. 2682/2008/(MAD)(TN)ELB, of 8 Dec. 2010). The Ombudsman agreed that the disclosure was legitimately barred by the EU data protection laws, omitting the relationship between the refusal of information and the violation of the journalist's freedom of expression.
40. The presumption of non-disclosure is restricted to Member States and the Art. 258 TFEU procedure only, despite having been derived from the broader exception protecting the purpose of investigations, inspections and audits.