The right on access to documents as promoter of the democratic
legitimacy of the European Union:
The CJEUs recent case law.
Sam Pletsch
LL.M
International and European law : European Union Law
Supervisor: Dr. Maria Weimer
Abstract
With the adoption of Regulation 1049/2001, the European Union responded to a call for greater transparency of the EU institutions. The Regulation was, in the eyes of many, a perfect tool with which to fight the Union’s ‘confidence crisis’ and even the widely admitted democratic deficit from which the European Union is suffering.. The Court of Justice of the European Union (CJEU) has played a central role in the development of the right on access to documents and in the shaping of the scope and limits of application of Regulation 1049/2001. On the one hand, I demonstrate the ability of the right on access to documents to improve the democratic legitimacy of the Union and, on the other hand, I analyze the influences that the CJEU has in the matter, through its case law,. To do so I chose to look more closely at recent developments in the CJEU’s case law, placing them in the context of prior case law and proving that democratic legitimacy is still accorded a high importance in the balancing of the different interests at stake. Consequently, and in order to achieve this, I chose to follow the structure of the exceptions of article 4 of Regulation 1049/2001, setting out the interests that need to be protected against disclosure. Some cases, as well as certain interests, will be accorded more importance than others, either because they are particularly representative of the way in which the CJEU uses access rights to improve the democratic legitimacy of the Union, or because empirical evidence shows that that interest is particularly often employed by the institutions to justify non-disclosure.
INDEX:
CHAPTER 1 INTRODUCTION ... 5
CHAPTER 2 - THE DEVELOPMENT OF THE RIGHT OF ACCESS TO DOCUMENTS AND ITS ABILITY TO INCREASE THE DEMOCRATIC LEGITIMACY OF THE EU. ... 9
2.1. ACCESS TO DOCUMENTS AS A PROMOTER OF DEMOCRATIC LEGITIMACY IN THE EU ... 9
2.2. THE SCOPE OF REGULATION 1049/2001 ... 11
2.2.1. Large scope of application ... 11
2.2.2. Limited number of ‘narrowly interpreted’ exceptions ... 12
2.2.3. The failed attempt(s) for amending Regulation 1049/2001 ... 13
CHAPTER 3 THE COURT OF JUSTICE’S CASE LAW ON ACCESS TO DOCUMENTS STRENGTHENING DEMOCRATIC LEGITIMACY OF THE EU? .. 15
3.1. THE CJEUS POWERS AND FUNCTIONS IN ATD ... 15
3.2. THE CJEUS REASONING IN ITS EARLY LANDMARK CASES: AN OPTIMISTIC START ... 17
3.2. A TENDENCY TO LIMIT MANDATORY EXCEPTIONS FOR MORE ACCOUNTABILITY?... 19
3.2.1. Exceptions of article 4(1)(a): The public interest exception ... 19
3.2.2. Exception of article 4(1)(b): Privacy and data protection ... 21
3.3. DISCRETIONARY EXCEPTIONS... 24
3.2.1. Article 4(3): the decision-making process exception ... 25
-The quasi-impossibility to rely on the article 4(3) exception in legislative procedures, based on democratic considerations ... 25
-Aritcle 4(3) decision making and ‘space to think’ in administrative procedures enlarged? ... 27
3.3.2. Exception of article 4(2): an increasing tendency to admit a general presumption of non-disclosure ... 30
-Commercial interests ... 30
-Court proceedings ... 31
-Legal advice ... 32
-The purpose of inspections, investigations and audits ... 34
3.3.3. The particular case of risk assessment and documents held by agencies... 36
CHAPTER 4 CONCLUDING OBSERVATIONS... 41 TABLE OF CASES: ... 44 BIBLIOGRAPHY ... 47
Chapter 1 Introduction
In relation de Capitani judgment1, Helen Darbishire, Executive Director of Access Info
Europe stated that “this important ruling supports the rights of citizens to scrutinize and engage
in ongoing decision-making processes, especially when those processes will result in legislation of relevance to all 510 million European citizens.2’’ Thereby she compliments the General Courts (hereinafter GC) recognition for a need of higher transparency and the respect of democratic principles in the decision-making processes of the European Union (hereinafter EU).
It is a response to a well-known claim, acknowledged by a majority of authors, that the EU is suffering from a ‘democratic deficit’3. The reasons, as well as the problems, vary between
those debating the subject, leading to multiple interpretations of the notion of ‘democratic
deficit’4. There is a current concern regarding the EU’s remoteness from its citizens: they are
unable to understand its functioning due to an overwhelming incomparability to their own domestic democratic institutions5 and, furthermore, there is a lack of legitimacy of decisions
taken by the institutions, due to the complexity of its decision-making processes. The consequence of this lack of understanding, is an insufficiency of participation of EU-citizens in those decision-making process and what is referred to as ‘the perilous pit of rejection of the EU
by its own constituent population’6. The result is what some like to refer to as a ‘crisis of confidence’7. The problem has been recognized by the institutions and it has been widely
accepted that, ‘the call for openness and transparency (…) represented a condition for
democratic legitimacy of the rule of the Union’8.
The right on access to documents (hereinafter ATD) is intrinsically linked to the principle of openness and transparency. With the entry into force of the Treaty of Amsterdam
1 Case T-540/15 De Capitanit v European Parliament [2018] ECLI:EU:T:2018:167
2 Access Info Europe: The GC of the EU rules in favour of greater openness of EU legislative procedures (2018)
https://www.access-info.org/article/30467
3 Hix, Simon and Follesdal, Andreas, Why is There a Democratic Deficit in the EU? A Response to Majone and Moravcsik (2006). Journal of Common Market Studies, Vol. 44, No. 3, pp. 533-562, 2006. Available at SSRN: https://ssrn.com/abstract=1682094
4 Ibid 5 Ibid
6 Rossi Leonor, Vinagre e Silva Patricia. (2017). Public access to documents in the EU. Oxford and Portland, OR: Hart. p.1
7 Labayle Henrie, ‘Openness, transparency and access to documents and information in the European Union’, (2013), Policy Department C: Citizens’ rights and Constitutional Affairs, The European Parliament PE available at: http://www.europarl.europa.eu/supporting-analyses
in 1999, the principle of openness was included in primary law, namely in article 1 TEU. This evolution was supported by the introduction of articles 41 and 42 in the Charter of Fundamental Rights. Even though, at that point, article 255 TEC was deprived of direct effect9, it is of
predominant importance in two ways. Firstly, it changed the right of ATD from a simple option, granted on a discretionary basis to those administered by the institutions, to a true ‘subjective
fundamental right’ granted to those targeted by article 255 TEC10. Secondly, it laid down the
basis for the adoption of Regulation 1049/2001. These developments are framework provisions, setting out certain rights, but the modalities will be set out in secondary legislation, with Regulation 1049/2001 as the central instrument11. The month of May of the year 2001 is a
landmark moment in the access theme12. Regulation 1049/2001 was welcomed by many of
those authors arguing for greater transparency13 and was given the optimist nickname of the
‘Sunshine-Regulation’14. Hood even stated that it has been eulogized to ‘quasi-religious
significance’15.
It governs the fundamental right of citizens and residents of the EU to have ATD held by the EU institutions16, gives them a tool to obtain the documents they desired to view17 and
confers to any individual the right to recourse to court proceedings in case of a negative response18.
The Treaty of Lisbon first of all was significant that after the introduction of article 6 TEU, the Charter of fundamental rights, and thereby article 42 thereof, now have the same legal value as the Treaties. Furthermore, a specific title on democratic principles has been included in the TEU, not only underlining the principle of representative democracy19 but also introducing
9 T Case T-191/99, Petrie and others/Commission [2001] ECR II-3677 10 Labyale(n.7)
11 Chalmers Damian, Davies Gareth, Monti Giorgio: EUROPEN UNION LAW: Cases and Materials, 3rd edition, Cambridge University Press, (2014) p.412
12 Rossi and Vinagre e Silva (n.6) p.30
13 Heliskoski Joni and Leino Päivi, ‘Darkness at the break of noon: The case law on regulation no. 1049/2001 on access to documents’ (2006) 43, pp. 735-781 Common Market law review
14 Leino, Päivi, 'Just a little sunshine in the rain: The 2010 case law of the European Court of Justice on access to documents' (2011) 48 Common Market Law Review, Issue 4, pp. 1215–1252
15 Hood C, Transparency in Historical Perspective. (2006) In Hood, C. & Heald, D. (Eds.) Transparency. The Key to Better Governance? Oxford, Oxford University Press. c.f. De Fine Licht Jenny, Naurin Daniel, Esaiasson Peter, et al. Does transparency generate legitimacy? (2011) An experimental study of procedure acceptance of open-and closed-door decision-making. QoG Working Paper Series, vol. 8, p. 1-32.
16 Harden Ian, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’ (2009) 15 European Public Law, Issue 2, pp. 239-256
17 Curtin Deirdre and Meijer Albert, ‘Does Transparency Strenghten Legitimacy? A Critical Analysis of European Union Policy Documents’ (2006). Information Polity. Available at SSRN: https://ssrn.com/abstract=1434862 18 Art8(3) Reg.1049/2001
19 Leino, Päivi, Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’ (2014) EUI Department of Law Research Paper No. 2014/03. Available at SSRN: https://ssrn.com/abstract=2416242
provisions for participatory democracy. As to the former, in accordance of articles 10(1) and 10(2) TEU, the institutions must be democratically accountable to their citizens. Finally article 255 TEC has been replaced by article 15 TFEU which extends the right of ATD to all ‘bodies,
offices and agencies’ and is thereby a demonstration that the call for transparency through ATD
has been accorded further importance. Regarding participatory democracy, article 10(3) and 11(2) TEU have a common objective, namely the participation of civil society in EU decision-making. While article 10(3) only mentions a ‘right’ of the citizens to participate ‘in the
democratic life of the Union’, article 11(2), submits the institutions under a positive obligation
to ‘open, transparent and regular dialogue with representative associations and civil society’. A well-functioning instrument for gaining ATD is essential to ensuring the effectiveness of democratic principles. Regulation 1049/2001 was and is, in that regard, a success for those in favour of transparency in that it is the implementation of the recognition that the administrations openness entails greater democratic legitimacy (hereinafter DL) and ensures more accountability to its citizens20. Lenaerts states that the principle of transparency is used by the
Court of Justice of the European Union (hereinafter CJEU) to ‘enhance the DL of the EU by
providing sufficient means for EU citizens to hold their representatives accountable21’.
The extent to which ATD is effectively improving the DL of the EU is still questioned22.
I claim in this paper, as I shall demonstrate below, that it does contribute to greater DL even if it cannot be seen as the miracle cure of a problem as complex as the democratic deficit of the EU. The core aim of this paper is to demonstrate that the CJEU still uses its case-law in the subject matter of ATD, at least to some extent, to improve the DL of the EU.
The central research question consequently aims to determine to what extent the CJEUs recent case law on access to documents can be seen as improving transparency and increasing the democratic legitimacy of the EU.
In order to answer this question, chapter two will begin by treating the relation between DL and ATD before defining the scope of Regulation 1049/2001. Concretely, I shall expose the main arguments that support the assumption that ATD is a feature improving the DL of the
20 Spahiu Irma, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and European Law 5, DOI:
http://dx.doi.org/10.5334/ujiel.ct
21 Lenaerts, Koen THE PRINCIPLE OF DEMOCRACY IN THE CASE LAW OF THE EUROPEAN COURT OF JUSTICE. (2013). International and Comparative Law Quarterly, 62(2), 271-315.
doi:10.1017/S0020589313000080 22 Curtin & Meijer (n.17)
EU. Chapter three starts with an overview of the Courts powers in the matter of ATD then presents the landmark cases on ATD and continues with an analysis of the case law post-2012 with the aim to determine if there was a significant shift in the Court’s line of reasoning giving indications of its ability and willingness to boost DL through its ATD case-law.
Chapter 2 - The development of the right of access to documents and
its ability to increase the democratic legitimacy of the EU.
2.1. Access to documents as a promoter of democratic legitimacy in the EU
Before entering into the discussion as to whether access rights are likely to further DL, it is first necessary to establish how DL has to be understood. Scharpf23 operated a distinction
between output and input legitimacy, with output legitimacy being linked to the peoples believe that the concerned structure should exist24, as well as to the effectiveness and performance of
its policies25. Input legitimacy, on the other hand, depends largely upon the citizens’ possibility
to participate in decision-making and respect of their will by institutions in their policy-choices26.
The discussions on whether transparency and increased openness may strengthen DL extends far beyond the borders of the EU. Indeed, in most democratic systems, there is a ‘widespread perception that openness increases the perceived legitimacy of the
decision-making27’. However, I shall refrain from entering general discussions which are not specifically
applied to the EU.
The debate on whether transparency is effectively strengthening DL or whether it is simply a rhetorical exercise is ongoing28. It is often presented as the most straight forward
approach or a purely theoretical explanation for the improvement of DL with little practical effectiveness. These assumptions may often be related to unrealistic expectations of the principle of transparency being the EU’s ‘magical cure’ to the democratic deficit problems. However with additional political rights enabling citizens to influence the actions of their public authorities29, the principle of transparency is indispensable to further the DL of the EU.
The principle of openness was introduced in 1991 to strengthen the democratic nature of the institutions30. Transparency is seen only as a single component of the principle of openness,
23 Scharpf, Fritze W, Governing in Europe (1999) Oxford: OUP. Find at Oxford scholarship online:
http://www.oxfordscholarship.com.ezproxy.bu.edu/view/10.1093/acprof:oso/9780198295457.001.0 001/acprof-9780198295457?rskey=AqRhfk&result=3
24 Curtin & Meijer (n.17)
25 Schmidt Vivien A., (2006) Democracy in Europe Oxford: Oxford University Press 26 Ibid.
27 De Fine Licht, Naurin, Esaiasson (n.15)
28 Hillebrandt, Maarten Z, Living transparency: The development of access to documents in the Council of the EU and its democratic implication (2017) p.33
29 Buijze Anoeska, The principle of transparency in EU law (2013) Uitgeverij BOXPress, 's-Hertogenbosch 30 COM/2007/0185 final
whilst participation is regarded as the second component31. ATD is an implementation of the
requirement for more openness in that it gives citizens the possibility to understand the decision-making process in conjunction with the possibility to scrutinize the institutions’, enabling them to participate directly in the decision-making process. It is thus inextricably linked to both components of the principle of openness. The Commission, in this regard, stated that ‘providing more information and more effective communication are a pre-condition for
generating a sense of belonging to Europe32’. As many claim, this is the beginning of a political
stage in which the Commission started using transparency with an objective to enhance legitimacy through greater openness33. Von Bogdandy states the importance of transparency of
public action, is its ‘comprehensibility and the possibility of attributing accountability’34
Understanding the decision-making process furthers DL in the sense that, as a consequence, citizens are more willing to ‘accept decisions in the face of any remaining
disagreements after the deliberations35’. Furthermore, greater understanding through increased
access furthers the social acceptance of policymaking structures36 as a whole, since citizens are
offered the possibility to participate in the process. It might be true that greater understanding does not automatically lead to greater legitimacy, since people can also disagree. But greater understanding gives the people the possibility to think and get involved in policy making. This implies that transparency also requires knowledge of the motives that lead to decision-making37
and thereby identifies a link to the second aspect, namely accountability. Furthermore an open public debate on political decisions, e.g. about its correct legal basis38, enhances greater
legitimacy in the sense that criticisms are likely to point out weaknesses of a decision, and thus gives the possibility to the institutions to correct and adapt their measures.
31Weinberg (Jonathan), Presentation « Open Government : Defining, Designing, and Sustaining Transparency », 21.01.2010, Princeton (NY), University of Princeton (available on : http://citp.princeton.edu/open-government-workshop/).c.f. Curtin Deirdre, Mendes Joana, « Transparence et participation : des principes démocratiques pour l'administration de l'union européenne », Revue française d'administration publique, 2011/1 (n° 137-138), p. 101-121. DOI : 10.3917/rfap.137.0101. https://www.cairn.info/revue-francaise-d-administration-publique-2011-1-page-101.htm
32 Commission White paper on governance COM(2001) 428
33 Curtin & Meijer (n.17)); Kohler-Koch B. and Finke B, “The Institutional Shaping of EU-Society Relations: A Contribution to Democracy via Participation? ”(2007) 3 Journal of Civil Society 205. ; Alemanno, Alberto, Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy (2014)European Law Review HEC Paris Research Paper No. LAW-2013-1003. Available at
SSRN: https://ssrn.com/abstract=2303644
34 Von Bogdandy Armin ; The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations ;The European Journal of International Law Vol. 23 no. 2 (2012). Published by Oxford University Press on behalf of EJIL Ltd.
35 De Fine Licht, Naurin, Esaiasson (n.15) 36 Curtin & Meijers (n.17)
37 Von Bogdandy (n.34)
Furthermore as Curtin and Meijer rightly point out: ‘giving citizens the possibility of
monitoring policymaking and scrutinizing its result will enhance the legitimacy of the institutional structures’39. In the context of the current mistrust citizen have in their
representatives, it is crucial that they can follow the activities and scrutinize their decisions. This becomes even more important in the context of potential conflict of interests of decision-makers. In such a situation holding them accountable legitimizes their decisions, since the public’s accountability functions as a guarantee of independence and impartiality. Citizens can thus evaluate the decisions of their representatives. Furthermore the outcome and effectiveness of those decisions, must also be subject to public accountability in order that civil society is able to accept and recognize the utility of a decision. Through greater public acceptance decisions and the institutions that took them gain in legitimacy.
2.2. The scope of Regulation 1049/2001
Article 1 of Regulation 1049/2001 states that the purpose of the regulation is to give the fullest possible effect to the right of access in its definition, principles and limits40, ‘to establish
rules ensuring the easiest possible exercise of this right41, and to promote good administrative
practice on ATD42’. It is noteworthy that neither article 15 TFEU nor Regulation 1049/2001
express an absolute right43 and Regulation 1049/2001 contains a noticeable number of
exceptions.
2.2.1. Large scope of application
Concerning the application for disclosure, it must be sufficiently precise for the concerned institution to be able to identify the documents44 but the Regulation does not require that the
applicant state any reason or motive for requesting consultation of the documents in the application45. The applicant, in order to have a right of access under the Regulation, must be a
39 Curtin & Meijer (n.17))
40 Art.1(a) Reg.1049/2001 41 Art.1(b) Reg.1049/2001 42 Art.1(c) Reg.1049/2001 43 Labayle (n.7) 44Art.6(1) Reg.1049/2001 45 Ibid.
citizen of the EU or be a legal or natural person residing or having his/her registered office on the territory of the EU46.
The Institutions concerned by article 1 of the Regulation are the EP, the Commission and the Council as well as all of their agencies47. The new article 15(3) TFEU extends the right of
ATD to other institutions, namely to all bodies, offices and agencies, the CJEU, the ECB, and the EIB. It is true that the Regulation has not yet adapted to this change but most institutions and bodies have adopted voluntary acts ruling on ATD, mostly identical or very similar to Regulation 1049/200148.
Concerned are all documents within the conditions and limits of the Regulation. The definition of ‘document’ is very broad and aims to include the maximum scope of documents. In this sense, the Regulation specifies that not only documents produced by the institutions are concerned but every document in their possession49.
One can observe that the conditions for requesting ATD are, unsurprisingly and considering the aim of the Regulation, extremely broad, in order to make them applicable to as many documents as possible.
2.2.2. Limited number of ‘narrowly interpreted’ exceptions
Regulation 1049/2001 foresees two mandatory exceptions in article 4(1) and a number of discretionary exceptions in articles 4(2) and 4(3). Moreover, in accordance with article 4(5), Member States may demand that the institutions not disclose a document originating from that Member State without its prior consent. In accordance with the principle of the widest possible access, the CJEU stated that these exceptions must be interpreted narrowly50 and that for each
document there should be a concrete and individual examination51.
For mandatory exceptions, Regulation 1049/2001 requires52 the institutions to refuse
access should disclosure undermine the protection of ‘privacy and integrity of the individual’53
46 Art.2(1) Reg.1049/2001
47 Recital(8) Reg.1049/2001
48 Curtin Deirdre and Leino, European Parliament, ‘Openness, Transparency and the Right of Access to Documents in the EU’ (2016), , Policy Department C: Citizens’ rights and Constitutional Affairs, The European Parliament PE available at:: http://www.europarl.europa.eu/supporting-analyses
49 Art.2(3) Reg.1049/2001
50 Case C-353/99 P, Council v. Hautala [2001] ECR I-9565 para.55
51 Case T-2/03, Verein fur Konsumenteninformation/ Commission [2005] ECR II- 1121 para.69 52 Chalmers& Davies& Monti (n.11) p.416
on the one hand or one of the four categories that fall within the public interests54 on the other
hand. These interests are considered to be of such an importance that there is no need to balance them against the interest of public disclosure55. Thus the Court only conducts a limited or
marginal review of those decisions56.
As for the discretionary exceptions, the institutions can refuse access after balancing the protected interest against a possible ‘overriding public interest (hereinafter OPI) in
disclosure’57. That said, the existence of an OPI must be established by the applicant. As we
shall discuss in chapter four, this latter appears to create certain problems in terms of proving the existence of an OPI. Nevertheless, as Heremans rightly points out, ‘the Court has accepted
that the public interests in transparency, openness and democracy underlying the Regulation are capable of overriding the Regulation’s exceptions’58.
As to the specific interests protected by exceptions, they will be discussed in chapter 4 through analysis of the relevant case law for each exception.
2.2.3. The failed attempt(s) for amending Regulation 1049/2001
Since the adoption of Regulation 1049/2001 in 2001 there have been no amendments although it seems to be commonly accepted that, at latest, following the adoption of the Treaty of Lisbon, such amendments are indeed necessary in order to conform with the Treaties. Furthermore, since the entry into force 17 year ago, many claim that the most important principles developed through the CJEU’s case law should be included in the Regulation. In 2006, the EP requested that the Commission submit a legislative proposal to improve legislation on transparency59. The first attempt of a recast was the submission of a proposal by the
Commission in April 200860. The fact that the chosen technique was a recast has practical
implications, namely that the EP, in these procedures, had limited power in proposing
54 Art.(1)(b) Reg.1049/2001 lists: public security; defence and military matters; international relations; financial, monetary or economic policy of the Community or a Member State.
55 Adamski, Dariusz, How wiede is the ‘widest possible’? Judicial interpretation of the exceptions to the right of access to official documents revisited. Common Market law review n.46 : 521-549, (2009) Kluwer Law
International
56 Heremas Tinne, ‘Public Access to Documents: Jurisprudence between Principle and Practice (Between jurisprudence and recast)’ Egmond Paper No.50 , September 2011,
57 Ibid.
58 Ibid. referring to Turco. 59 Harden (n.16)
60 Hedh: Revision of the ATD regulation (accessed 20.05.2018)
amendments. The reasons for this choice seem clear: in opposition of the favourable intentions of increased transparency expressed by the Commission in its Green Paper in 200761, the
Commission proposal will actually limit the public’s right to access EU documents62. The EP,
in response, adopted a Resolution in 200963 in favour of transparency, strengthening a
broadening ATD. To summarize the situation, there are ‘strongly diverging views about amending the Regulation’64, namely that the Commission and the Council appear to prefer to
restrict access whilst the EP wishes to extend it, leading to a ‘complete impasse in the legislative procedure’65.
As reasons for a reform vary between authors and this paper only addresses a few points, which are commonly mentioned. Unarguably the most important need is the alignment of the Regulation with the Treaties. Article 15(3) TFEU extends the scope of the right on ATD to all organs, agencies, and bodies. The regulation itself states that it is only applicable to the main institutions. Furthermore Access Info Europe in its campaign requests that non-administrative functions of the ECB, the EIB and the CJEU will be included in the scope, even though the Treaties only refer to their administrative functions66.
Secondly, the definition of ‘documents’ under the regulation needs clarification. The Commission argued that they have to be ‘formally transmitted to one or more recipients…or otherwise recorded’. This gave raise to many criticism since thereby, certain internal documents would fall outside of the scope of Regulation 1049/200167. Access Info Europe wants a simple
definition with a broad scope of application: "’document’ means all content, whatever its
medium” , thus not including any limitations in the definition.68
Thirdly, authors in favour of transparency request that the mandatory exceptions should be reformed, and that a public interest test is necessary for what are now the mandatory
61 COM(2007) 185 final
62 Access Info Europe: Proposed Amendments to EU ATD Reg.1049/2001
https://www.access-info.org/uncategorized/11143
63 EP resolution of 17.12.2009 on improvements needed to the legal framework for ATD following the entry into force of the Lisbon Treaty, Regulation (EC)No.1049/2001
64 Biskup& Rusch (2015): http://ojs.imodev.org/index.php/RIGO/article/view/8/69#__FN25__ 65 Curtin & Leino (n.48)
66 Access Info Europe: Civil Society Campaign on Reform of the EU ATD
https://www.access-info.org/wp-content/uploads/Civil_society_call_for_reform_of_EU_access_rules.pdf
67 Augustyn Maja, and Monda Cosimo. Transparency and Access to Documents in the
EU: Ten Years on from the Adoption of Regulation 1049/2001. (2011) EIPAScope, 2011 (1). pp. 17-20. ISSN 1025-6253
68 Access Info Europe: Civil Society Campaign on Reform of the EU ATD
exceptions69. Especially the data protection exception, when it comes to disclosure of
information of public officials should in my opinion be subject to a public interest test. Finally, it has been argued that a new provisions are needed in order to be in line with the Aahrus Convention. Therefore the Commission proposed to include a new exception for the protection of ‘the environment, such as breeding sites of rare species’70.
Chapter 3 The Court of Justice’s case law on access to documents
strengthening democratic legitimacy of the EU?
3.1. The CJEUs powers and functions in ATD
Article 19(1) TEU states that the CJEU ‘shall ensure that in the interpretation and application of the Treaties the law is observed’. There are several ways to bring a case before the CJEU. In the matter of ATD, the primary action is the action for annulment of article 263 TFEU, which an applicant may employ to contest the refusal of an institution to disclose requested documents. If the Court finds the refusal to be unfounded, it will annul the concerned decision. However, even where the CJEU annuls a decision, it does not have the authority to address an order to the concerned institution to disclose the document or fulfill the initial request of the applicant. It is only able to pronounce that the decision was illegal and consequently annul it71.
Nonetheless, by exercising its function, the Court has the obligation to apply the rule of law, and, at the same time, has the opportunity to take into consideration political problems, in that it has a certain discretion in its interpretation.
69 Ibid.
70 Harden (n.16)
The CJEU is often seen as a particular activist court72 in that it takes political
considerations into account or may even transgress its judicial functions. ATD is certainly not the only, but, in my opinion a particularly pertinent example of how the Court of Justice can take activist decisions. It should be noted that the EU courts played a predominant role in the development of the right on ATD prior to, but, most importantly, following the entry into force of Regulation 1049/200173. The CJEU has since produced a sizeable, not uncontroversial74
body of case law that has, to a large extent, shaped the right of ATD75. Unarguably, the Court,
in early years, adopted an activist approach in favour of transparency by using ATD as a future to improve the DL of the EU76.
The CJEU needs to balance very differing interests when deciding or pronouncing on ATD cases. On one hand, there is the call to strengthen DL through increased transparency, whereas on the other hand, there are a multitude of interests77 that may be better protected, at
very least in the opinion of the institutions, by non-disclosure. The Council and the Commission especially are seen to be in particular favour of secrecy. Therefore, the CJEU is regarded as the sole possibility for EU citizens to gain access to a large proportion of documents, in spite of the confirmation of the principle of access rights to documents78. Furthermore, the resulting
decisions have played, as Rossi and Vinagre et Silva rightly point out, ‘the fundamental role of steering the practice of the institutions’79. The CJEU thereby defines ‘clear-cut rules of
behaviour by balancing the interests in play’80. This paper is focused on the importance that the
CJEU accords to the promotion of democratic legitimacy when balancing the interests at stake. Finally, as explained in Chapter 2, all attempts to reform Regulation 1049/2001 have failed, even though it is largely accepted that reform is necessary. Curtin and Leino therefore stated that the role of the CJEU is ‘centre-stage with litigants attempting to challenge a range of embedded secretive practices across a range of institutions and tasks’81.
72 Blauberger Michael & Schmidt Susanne K, The European Court of Justice and its political impact, West European Politics, (2017) 40:4, 907918, DOI: 10.1080/01402382.2017.1281652
73 Spahiu (n.20) 74 Heremans (n.56) 75 Labayle (n.7) 76 See Chapter 4.
77 Namely those mentioned in the exceptions of Reg.1049/2001 78 Labayle (n.7)
79Rossi and Vinagre e Silva (n.6) p.1 80 Labayle (n.7)
3.2. The CJEUs reasoning in its early landmark cases: an optimistic start
As stated above, the CJEU chose to make access rights a precious tool to further democratic legitimacy, initially using it, primarily but not exclusively, in legislative procedure cases. This early period, namely those years following the entry into force of Regulation 1049/2001 up until 2010 and 2011, is characterized by an optimistic and activist approach by the Court of Justice. The years 2010 and 2011 in particular have been described as being ‘dark’ years for those who argue in favour of transparency as a promoter of DL 82. From this point
onwards, including the past five years, which we will look at more closely in the following sections, the Court chose to favour its cases on legislative procedures as instruments by which to promote democratic legitimacy through access rights. The fact that, in some documental categories in administrative procedures, the outcome might not favour transparency does not however necessarily mean that the Court abandoned its position: we will illustrate that the reasons as well as the implications of those decisions may be relativized.
The ECJ demonstrates its position in Sweden v Commission83 by referring to recitals 2
and 3 of the preamble of regulation 1049/2001 and drawing attention to the fact ‘that (the
Regulation’s) 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.’84 Furthermore,
and most importantly, it states that the exceptions of Regulation 1049/2001 must be ‘interpreted
and applied strictly’ because of the ‘democratic nature of the institutions’ and the ‘widest possible right of access85.The weight of democratic legitimacy considerations becomes even clearer in the ECJs landmark case, Turco v Council86. In this case, Mr. Turco, requested access
to a set of documents, including a piece of legal advice from the Council on the proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused this access, relying on several exceptions of article 4 of Regulation 1049/2001. Some argue that the Turco judgment was a climax87 in the application of the
principle of democracy88 in the CJEUs case law on access to documents since it touches upon
82 Adamski Dariusz, 'Approximating a workable compromise on access to official documents: The 2011 developments in the European courts' (2012) 49 Common Market Law Review, Issue 2, pp. 521–558 83 Case C-64/05 P, Sweden/Commission [2007] ECR I-11389
84 Ibid para. 54 85 Ibid para. 66
86 Joined cases C-39/05 P and C-52/05 P, Sweden and Turco/Council [2008] ECR I-4723. 87 Leino (n.14)
the core of the democratic function which access to documents seeks to attain89. It is true that
the Court’s entire reasoning was based on the fact that it is ‘precisely openness (…) that
confer(s) greater legitimacy to the institutions in the eyes of the citizens’90 and therefore that
the Council has an obligation to disclose its opinions which in the present case where legal advices on the legislative procedure and this irrespectively of whether the legislative procedure is still ongoing or not.
The Council contested that overriding public interest, rendered the exception of article 4(2) inapplicable: the interest invoked by Sweden were the very same principles underlying the regulation. The CJEU disagrees in stating that overriding public interest sufficient to justify the disclosure of a document can be the principles which underlie the regulation91. These principles
being ‘increased openness, in that this 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 system92’ the Court again bases its reasoning on the essence of democratic legitimacy itself.
The Court’s decision in MyTravel, issued in 201193, was of similar importance to the Turco
judgement. As to the facts, a judgment in 200294 annulled a Commission decision regarding the
merger of MyTravel with another company. In order to appeal this judgment, the Commission ordered a report of the legal advice service and from the Directorate General for Competition. MyTravel requested access to the report, to the preparatory documents for the report and to files regarding the merger. The Commission refused access based on the decision-making and legal advice exceptions and did not admit the existence of an OPI. The GC95 supported the
Commission’s decision and dismissed the action, following which Sweden brought an appeal before the Court of Justice.
The CJEU reconfirmed that refusing access is an exception to the principle of the widest possible and that therefore the exceptions have to be interpreted narrowly96, that the institution
refusing access is obliged explain how the disclosure could specifically and effectively undermine the interest protected97 and that the risk must be foreseeable and not purely
89 Adamski (n.55)
90 Turco (n.86) para.59 91 Turco (n.86) para.74 92 Ibid. para.45
93 Case C-506/08 P, Sweden/MyTravel and Commission [2011] ECLI:EU:C:2011:496 94 Case T-342/99 Airtours v Commission [2002] ECR II-2585
95 Case T-403/05, MyTravel Group plc. v. Commission [2008] ECR II-2027 96 Ibid. paras.72-75
hypothetical98. Furthermore, the Court states that, if the procedure has ended, there is a lower
risk that the decision-making process be undermined, and thus dismissed the Commission’s ground because it was unable to explain how disclosure might seriously undermine the decision-making process99. Finally, regarding the Commission’s refusal based on the legal
advice exception, the Court first recalled that administrative procedures do not escape the scope of Regulation 1049/2001100. The Court goes on to repeat the same formula as in the Turco
judgment, by stating that, in the eyes of the citizens, it is precisely in debating divergences in the decision-making process that greater legitimacy to the institutions is conferred101.
The judgment clearly demonstrates the position of the CJEU: in the balance between transparency and secrecy, it clearly accords greater weight to the former than to the latter102: it
does this through democratic considerations, such as the involvement of citizens, not only in legislative decision-making but also in administrative procedures. One has to admit that it is noteworthy, in the present case, that the administrative procedure was already closed. We shall see that the position of the Court in ongoing administrative procedures is somewhat different: it is a position that is broadly criticized. Nevertheless, the MyTravel judgement was widely welcomed since it explicitly includes administrative procedures in the scope of Regulation 1049/2001, ‘emphasizing the benefits of transparency in the legitimacy of the Union’103
3.2. A tendency to limit mandatory exceptions for more accountability?
As explained in Chapter 2, the Court has only a limited review regarding refusals based on mandatory exceptions. The following two sub-sections will analyze how the Court was nevertheless able to shape these exceptions and did take DL into account in a considerable number of cases.
3.2.1. Exceptions of article 4(1)(a): The public interest exception
The exception to refuse access for public interest considerations is one of the two mandatory exceptions of article 4(1)(a) of the Regulation. The Court’s most interesting 98 Ibid. 99 Ibid. para.89 100 Ibid. para.109 101 Ibid. para.113 102 Spahiu (n.20) 103 Labayle (n.7)
judgments relative to article 4(1)(a) for this paper concern the third indent of the provision, namely international relations. At the same time, it presents the most successful grounds for refusal of access based upon public grounds: in 2017, in the early stages, 15,8% of all refusals were based on the international relations exception, while the other three interests of article 4(1)(a) taken together only represent 5,6%104. The GC and CJEU’s judgements in the In’t
Veld105 case is of particular interest. Sophie In’t Veld asked ATD about the legal analysis of
the council regarding the right legal basis for an international agreement with the USA. Access had been denied by the Council on the basis of article 4(1)(a), submitting that disclosure would undermine the protection of international relations in that doubts surrounding the correct legal basis could weaken the Council’s position during the negotiation period106. The applicant, on
the contrary, submits that ‘transparency regarding the legal basis would contribute to
conferring greater legitimacy on the Council as a negotiating partner’107. The Court does not
follow the Council’s argument and explains, in paragraphs 46-49, that differences on the legal basis cannot establish the risk of a threat to public interest in the field of international relations: the correct legal basis is not a choice of the author of the agreement but rather lies within objective factors. From a legitimacy perspective, this is highly desirable when contemplating the consequences of choice of the right legal basis. The principle of conferral gives the EU the competence to take action in certain areas. Where no competence has been conferred to the Union, the latter is not entitled to take action. A different legal basis can entail differences regarding the legitimate ability of the Union or of certain institutions to take action. Therefore a debate about the right legal basis is imperative to confer greater DL to the EU.
In Besselink108 the Court was faced with the question of whether the constitutional
nature of the accession of the EU to the ECHR , making the disclosure of this document of exceptional societal relevance, was likely to justify disclosure of the very documents preparing the accession. The Council, refusing access, based its arguments on the international relations exception. Due to the Council’s great margin of discretion when it comes to mandatory exceptions, the GC agreed with the Council. Ultimately, the Court states that the Council should have granted partial access but based its decision on procedural requirements rather than on the claimant’s argument founded on the constitutional nature of the accession. It stated that the constitutional nature was irrelevant since the Council decision in question concerned the
104 COM(2017) 738 final
105 Case C-350/12 P, Coucil v Sophie In’t Veld [2014] ECLI:EU:C:2014:2039 106 Ibid. Para.51
107 Ibid. para.43
procedure to apply rather than whether or not the EU should accede to the ECHR109. Some
argue that the decision of the GC is regrettable in that it failed to seize an opportunity for more ‘transparency and public debate’110. Nevertheless, the judgment fell in favour of increased
openness despite the fact that the GC did not base its reasoning on DL considerations such as public debate. It is therefore valuable in as much as the GC restricted the application of this exception whereas the institutions might have applied too broadly111.
Very recently, the GC decided on an action brought by Access Info Europe regarding a request for disclosure of the Commission’s legal advice regarding the so-called Turkey deal112.
The request concerned eight documents. The Commission had denied access based on several exceptions, amongst which the international relations exception. The GC upheld that the Commission was right to do so, basing its refusal on a combination of the exceptions in article 4(1), 4(2) and 4(3). The judgment is rather long and detailed: the GC examined each document separately, which was beneficial in shaping the scope of the international relations exception113.
It concluded that five of the eight documents should remain undisclosed based on this exception, that is, due to the fact that they contained information on the position of the EU that was likely to seriously harm relations with Turkey. From a legitimacy stand-point, it is not easy to evaluate the GC’s decision since the EU-Turkey deal is not an act of an EU institution114.
The documents at stake contained legal advice, notably on whether or not Turkey is a safe-third country or not. It seems logical to me that the disclosure of such information is quite likely to affect the international relations of the EU with Turkey. As there is no OPI for mandatory exceptions and the GC has limited power of review, I believe that the decision in regard to the international relations exception is not necessarily to be criticized from a DL point of view. However, we shall return to this judgement in the later sections discussing the OPI or legal advice.
3.2.2. Exception of article 4(1)(b): Privacy and data protection
109 Leino (n.18)
110 Hillebrandt (2013) http://www.eu-opengovernment.eu/?p=448#more-448 111 Leino (n.18)
112 Case T-851/16 Access Info Europe v Commission [2018] ECLI:EU:T:2018:69
113 Leino& Wyatt(2018):
https://europeanlawblog.eu/2018/02/28/no-public-interest-in-whether-the-eu-turkey-refugee-deal-respects-eu-treaties-and-international-human-rights/
The recent development in the Court’s reasoning in regard to the exception in article 4(1)(b) is most interesting for the purposes of this paper. The landmark case is the CJEU’s decision regarding Bavarian Lager in 2010115 where it accorded a high importance to the
protection of privacy. Pursuant to this judgment, Regulation 1049/2001 and Regulation 45/2001116 command the same value and the private interests mentioned in article 4(1)(b) must
always be assessed in conformity with Regulation 45/2001117. Furthermore, the Court decided
that the individuals whose personal data was concerned were obliged to give their consent for any disclosure118. The Court stated that, by disclosing the document in question but removing
only the names of certain participants, it ‘sufficiently complied with its duty of openness’119. It
is admittedly a delicate balancing act between, on the one hand, democratic principles and, on the other, the full respect of fundamental rights, namely the right of privacy120, especially now
that data protection is becoming increasingly important in the context of the ever-more rapid development of digital technology. The Court weighed up the options and decided in favour of the respect of privacy but, regrettably, it did not take into account whether disclosure would cause any serious harm to the integrity of those implicated121.
It is in this context that we can appreciate the promotion of DL in the 2015 judgment in Dennekamp. The Court considered that the disclosure of personal data may be necessary to make the public aware of the conflict of interests of public officials. In Dennekamp122,
disclosure of the names of MEPs participating in the new pension scheme was requested. The Court did not consider that it was necessary that the names of all the persons concerned by that measure be disclosed123. However, it did recognize that the disclosure of the Members’ names
voting on the scheme and at the same time affected by the scheme, should be revealed for the purpose of exposing potential conflicts of interests. The Court balanced the interests at stake, which are both fundamental rights, and concluded that the aim of disclosure, intending to increase the confidence of citizens in the EU, was of such importance that disclosure would
115 Case C-28/08 P, Commission/Bavarian Lager [2010] ECR I-06055
116 Regulation EC45/2001 of the EP and the Council of 18.12.2000 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,L8/1
117 Bavarian Lager (n.115) Para.60 118 Ibid. para.75
119 Ibid. para.76
120 In this sense see Lenaerts (n.21) 121 See in this regard Curtin& Leino (n.48)
122 Case T-115/13, Dennekamp v European Parliament [2015] ECLI:EU:T:2015:497 123 Ibid. para.87
prevail the MEPs interest in data protection124. However in that balancing the Court applied the
principle of proportionality and redefined the applicants claim, as it did not reveal all the names of MEPs concerned by the new pension schemes, but only those affected and having voted on it. It further states that ‘the disclosure of potential conflicts of interest is not aimed only at
revealing those cases in which the public official has performed his duties with the intention of satisfying his private interests, but also at informing the public of the risks of public officials being subject to conflicts of interest, so that they act impartially in the performance of their official duties’125. The fact that the Court decides in favor of transparency in situations where
public officials are subject to a risk of conflicts of interests, and thereby submitting those officials to a large degree of accountability, demonstrates that the Court is aware of mistrust in the EU126.
This was also acknowledged in the proposals for a recast where one of the main amendments concerned the privacy exception. In essence, a presumption of disclosure of the names, titles and functions of public office holders, civil servants and interest representatives would have been added127. Dahllöf considers this amendment to be ‘an attempt to overturn the
Bavarian Lager judgment128,which has been criticized by many as being imbalanced and poorly
reasoned129. From a DL point of view, this amendment would have been a significant
improvement since a presumption of disclosure of the abovementioned information of public representatives would have led to greater accountability. I consider that the judgment in Dennekamp follows a similar path to the proposed amendments, taking into account whether disclosure of information would harm the persons concerned.
As interesting as these developments appear in theory, in practice they have little application: from 2013-2017 only one refusal at the confirmatory and 11 at the initial stage 130
were based solely upon the data protection exception131.
124 Pecsteen(2015)
https://europeanlawblog.eu/2015/12/30/public-access-to-documents-effective-rear-guard-to-a-transparent-eu/
125 Dennekamp (n.122) para.106 126 Ibid. para.30
127 Council document DS 1397/12 Brussels, 4 June 2012 :
http://statewatch.org/news/2012/jun/eu-council-latest-access-reg-draft-position-ds-1397.pdf
128 Dahllöf(2012)
https://www.access-info.org/wp-content/uploads/Guide_to_the_battle_of_transparency_-_Wobbing.pdf
129 Adamski (n.82)
130 Annual report of the Council on the implementation of Reg.1049/2001 (2018) no.8689/18
http://data.consilium.europa.eu/doc/document/ST-8689-2018-INIT/en/pdf
3.3. Discretionary exceptions
In the VKI judgement132, the Court takes into consideration transparency but comes to
an outcome limiting the right on ATD. Arguably, the facts of the case were exceptional because the case concerned a request on access to cartel files that amounted to some 47.000 pages. The Commission refused access to the totality of the documents. In order to refuse access, Regulation 1049/2001 requires a concrete and individual examination of each document for which access had been requested. The Courts reasoning is particularly extensive surrounding the fact that, in order to refuse access, there must be individual and concrete examination and that partial access should be granted if possible except in very exceptional situations133. It then
expanded upon these exceptions, saying that ‘only where the administrative burden entailed by
a concrete, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible.’134 Furthermore, the burden of proof lies on the
institution135 and, in the case that proof is produced, the institution has the obligation to consult
with the applicant and to verify if any other options are available136. The Court had no real
choice other than to admit that a request to examine 47.000 pages was, in fact, unreasonable. This decision, when regarded as an isolated case, may be understandable137 due to the
administrative burden it implied. However, it opened the possibility for a general presumption of non-disclosure which was implicitly admitted three years later by the GC in MyTravel in 2008, in relation to internal administrative documents138. Furthermore, in MyTravel, it was the
first time that the GC made a clear distinction between legislative matters and administrative matters by saying that the right on ATD is less fundamental when exercised in the administrative context than in the legislative one, an argument that has been criticized since139.
The apprehensively foreseen consequences of the forgoing judgements, became reality for the first time in TGI140 when the Court decided in favour of a general presumption of
non-disclosure and thus found that the institutions, when basing non-non-disclosure on the exceptions
132 VKI (n.51) 133 Ibid. para.103 134 Ibid. para.112 135 Ibid. para.113 136 Ibid. para.114 137 It was not appealed. 138 Lenaerts (n.21) 139 Curtin& Leino (n.48)
of article 4(2) and 4(3), do not have to operate the individual examination of the requested documents as was intended in Regulation 1049/2001. I shall first analyze the Court’s recent judgments concerning exceptions in 4(2) and 4(3), with regard to their implications on DL, before returning to the practical application of the OPI and the implications on DL of the latter.
3.2.1. Article 4(3): the decision-making process exception
Although the exception itself does not draw a distinction between administrative procedures and legislative procedures, in practice it can be observed that success in arguing for non-disclosure based on exception 4(3) depends largely on that distinction. We shall demonstrate that this assumption can be supported by the majority of CJEU decisions over recent years, even if, in some cases, due to the promotion of DL, a different outcome may be observed.
-The quasi-impossibility to rely on the article 4(3) exception in legislative procedures, based on democratic considerations
In the past five years, the Court showed that it still uses its access case law to further DL. This became particularly evident in Access Info Europe where the Court had the opportunity to interpret article 4(3) of Regulation 1049/2001 in the context of a legislative process141. In fact,
the judgment concerned negotiations of the recast of Regulation 1049/2001 and Access Info Europe requested the disclosure of documents held by the Council revealing the position of several Member States in the early stages of the negotiation phase. The General Court decided in favour of disclosure of the said documents142. The Council submitted three grounds of appeal
concerning each the non-application of the exception in article 4(3) of Regulation 1049/2001143.
In its first ground it held that the GC omitted to take into account the balance between primary law, notably article 207(3) and secondary law, namely Regulation 1049/2001. The Council stated that the GC ‘attribute(d) undue and excessive weight to the transparency of the
decision-making process, without taking any account of the needs associated with the effectiveness of that process’. It held that Member States need to have a maximum room for manoeuvre from
the very beginning of the negotiation period and that the disclosure of the identity of the
141 Spahiu (n.20)
142 Case T-233/09 Access Info Europe v Council [2011] ECLI:EU:T:2011:105 143 Opinion AG Cruz Villalón (16.05.2013)
delegations would exert pressure not on the council but on the Member States144. The Court
points out that the General Court already found ‘that it is specifically the principle of democratic
legitimacy which requires those responsible for the proposals contained in the requested document to be publicly accountable for their actions, especially where that document is part of the legislative procedure145’. The Court then rejects the argument by saying that the GC did analyze the interests and simply came to the conclusion that they did not justify the exception of article 4(3). A further argument illustrating the Court’s emphasis on the DL concern is to be found in its response to the intervention of several Member States which claimed that disclosure of the identity of the delegations is not necessary to obtain the Regulation’s objectives. It held that the objective of the Regulation ‘is to confer on the public as wide a right of access as
possible to documents of the institutions146’ and that ‘full access may only be limited where the
exceptions apply147’. It shows that the Court not only wants to make the debates accessible, but also, as stated above by the GC, seems to be in favour of accountability of the various actors. The Council, in its subsequent grounds for appeal, submits that the GC erred in law on several points. It wanted, amongst other arguments, to prove that it was the particularly sensitive nature of documents that justified special protection under article 4(3). The Court firmly disagrees with the Council and states that the ‘proposals for amendment or re-drafting made
by the four Member State delegations which are described in the requested document are part of the normal legislative process, from which it follows that the requested documents could not be regarded as sensitive – not solely by reference to the criterion concerning the involvement of a fundamental interest of the European Union or of the Member States, but by reference to any criterion whatsoever.’148 The position towards openness and transparency, but, most
importantly, its concerns around improving DL, become very clear in this judgement. Legislative capacity and legislative procedure are, pursuant to this judgement, highly protected against the applicability of the exception in article 4(3) of the Regulation. As AG Cruz Villalon states in his opinion on the case, ‘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 from that procedure’149. By following his opinion, the Court could not have made
its position clearer..
144 Access Info Europe (n.142) para.24
145 Ibid. para.13 referring to paras. 69-74 of the judgement under appeal 146 Ibid. Para.40
147 Ibid. 148 Ibid. Para.63
In De Capitani150, the GC, just two months ago, had the opportunity to further restrict
the applicability of exception 4(3) in regard to legislative documents. On this occasion, the documents targeted were trilogues151 related to an ordinary legislative procedure in the area of
freedom, security and justice. Firstly, the Court had to pronounce on the nature of trilogues, i.e. whether they form part of the legislative procedure and thus can be considered as legislative documents. The GC, in a rather detailed manner, explained that, contrary to the argument of the EP, trilogues should be considered as legislative documents152 due to the fact that they are
a decisive phase of the legislative process : the majority of the EU’s legislative acts are adopted following a trilogue153. The GC then, most appreciably, excluded he possibility of the existence
of a presumption of non-disclosure in relation to trilogues154, basing its reasoning on the
importance of the principle of openness and transparency in the promotion of DL155. The GC
thereby reminds us that this kind of presumption can only be accorded in very restricted cases, in administrative and ongoing legislative procedures, and only if specific procedures are concerned156. It thus reaffirms its position that a presumption of non-disclosure cannot be
accorded for legislative documents.
Last but not least, the GC examined the arguments of the Parliament claiming that disclosure would seriously harm the decision-making process. It emphasized the sensitive nature of the requested documents, the early stage in the legislative process, the space to think argument, the temporary character of the disclosure and even the possibility that disclosure would harm sincere cooperation between the Institutions. The GC rejected all of these arguments, taking pains to offer explanations for each, in a rather extensive manner, of why they do not seriously harm the decision-making process.
-Aritcle 4(3) decision making and ‘space to think’ in administrative procedures enlarged?
The decision-making exception is still the most frequently used to justify non-disclosure: in 2017, 545 requests for access were denied based on this exception: this corresponds to 32% of
150 De capitatni (n.1)
151 ‘A trilogue is an informal tripartite meeting in which the representatives of the Parliament, the Council and the Commission take part’ (Para.56 in T-710/14 Herbert Smith Freehills v Council.)
152 De capitáni (n.1) Para.75 153 Ibid. para.70
154 Ibid. para.84 155 Ibid. paras.77-81 156 Ibid. para.82
all the refusals157. The Council158 is particularly likely to base refusals on this exception in
administrative procedures. The fact that decisions are taken behind closed doors, without informing citizens of the positions of their representatives, cannot be seen as furthering democratic legitimacy159. It should be noted here that the ‘space to think’ exception in
administrative procedures has tight links with the third indent of article 4(2), namely inspections and ongoing observations.
The CJEU seems also to consider that there is a less important necessity for public accountability and transparency in a number of document categories regarding administrative procedures, admitting that they are protected by a general presumption of non-disclosure. Concerning purely internal documents, the Court recognized, in Philip Morris160, that the
disclosure of the opinions and consultations of Staff-members for internal use is likely to undermine the decision-making process, in that disclosure would prevent them from independently expressing their views161. Even if the Commission, in the present case, failed to
demonstrate that such opinions were at stake, it is clear that the Court, by the abovementioned statement, accords an increasing importance to the ‘space to think’ exception and encourages the Commission to rely on the second subparagraph of exception 4(3).
This holds true for certain categories of preparatory documents for legislative procedures. It established in ClientEarth162 that there is no need for a specific and individual
examination of preparatory documents linked to an impact assessment and thus confirmed a presumption that the disclosure of each of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal. Another problem of the exception is the distinction between space to think in legislative and non-legislative matters is often perceived to be artificial163. It may be true that, in a purely administrative matter,
mostly individual litigants are involved and the interest for a broader public seems therefore weaker164. However, in ClientEarth, the documents were studies relating to the conformity of
157 Annual report of the Council on the implementation of Reg.1049/2001 (2018) no.8689/18
http://data.consilium.europa.eu/doc/document/ST-8689-2018-INIT/en/pdf
158 Hillebrandt (n.28)
159 Hillebrandt Maarten & Novak Stéphanie ‘Integration without transparency’? Reliance on the space to think in the European Council and Council, Journal of European Integration, (2016) 38:5, 527-540, DOI:
10.1080/07036337.2016.1178249
160 Case T-18/15 Philip Morris Ltd. v Commission [2016] ECLI:EU:T:2016:483 161 Ibid. Para.87
162 Case C-612/13 P, Client Earth v Commission [2015] ECLI:EU:C:2017:909 163 Curtin&Leino (n.48)
