# C_2021490EN.01004801.xml

| 6.12.2021 | EN | Official Journal of the European Union | C 490/48 |
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6.12.2021

EN

Official Journal of the European Union

C 490/48

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Action brought on 12 September 2021 — Swords v Commission

(Case T-586/21)

(2021/C 490/58)

Language of the case: English

Parties

Applicant: Patrick Swords (Dublin, Ireland) (represented by: G. Byrne, Barrister-at-Law)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the implied decision of the Commission dated 13 July 2021 refusing to grant access to documentation requested by the applicant; (1) |
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annul the implied decision of the Commission dated 13 July 2021 refusing to grant access to documentation requested by the applicant; (1)

| — | order the defendant to pay costs to the applicant. |
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order the defendant to pay costs to the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging that, in refusing access to the documentation requested, the Commission has infringed the third indent of Article 4(2) of Regulation No 1049/2001. (2)







  — | The applicant claims that, notwithstanding that an investigation is ongoing in respect of Ireland, that cannot by itself justify the application of the exception upon which the Commission has relied in refusing disclosure in this case. The fact that numerous fundamental rights of relevant members of the public have been so severely restricted in such an unprecedented and severe manner ought to have weighed against the decision to refuse disclosure in the context of this case. In that regard, the applicant asserts that the Commission failed to interpret and apply strictly the said restriction, given the hardship endured by relevant members of the public with respect to the extreme measures imposed by Ireland, which trespass upon civil liberties and fundamental rights in a manner entirely unprecedented in the history of the EU. The applicant claims that such considerations demonstrate that the principles of transparency and democracy in this case, together with the impediments on access to justice suffered by such members of the public, are issues of particularly pressing concern which should have prevailed over the reasons the Commission relied on to support its refusal to disclose the requested information. |
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1.

First plea in law, alleging that, in refusing access to the documentation requested, the Commission has infringed the third indent of Article 4(2) of Regulation No 1049/2001. (2)

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The applicant claims that, notwithstanding that an investigation is ongoing in respect of Ireland, that cannot by itself justify the application of the exception upon which the Commission has relied in refusing disclosure in this case. The fact that numerous fundamental rights of relevant members of the public have been so severely restricted in such an unprecedented and severe manner ought to have weighed against the decision to refuse disclosure in the context of this case. In that regard, the applicant asserts that the Commission failed to interpret and apply strictly the said restriction, given the hardship endured by relevant members of the public with respect to the extreme measures imposed by Ireland, which trespass upon civil liberties and fundamental rights in a manner entirely unprecedented in the history of the EU. The applicant claims that such considerations demonstrate that the principles of transparency and democracy in this case, together with the impediments on access to justice suffered by such members of the public, are issues of particularly pressing concern which should have prevailed over the reasons the Commission relied on to support its refusal to disclose the requested information.

| 2. | Second plea in law, alleging that if, the exception claimed by the Commission was applicable, the Commission erred in failing to recognise that the applicant’s request arose in exceptional circumstances, and erred in holding that there was no overriding public interest in disclosure of the requested information. Thus, the applicant claims that the Commission’s decision constitutes an infringement of the last sentence of the third indent of Article 4(2) of Regulation No 1049/2001.






  — | The extreme measures implemented by Ireland in relation to inter-EU travel trespassed upon civil liberties and fundamental rights in a manner entirely unprecedented in the history of the Union. As a result, several fundamental freedoms were severely affected, including the right to freedom of movement of persons, the right to engage in work and the right of access to justice. Given the unprecedented nature of the restrictions implemented, coupled with the gross infringements upon fundamental rights, the applicant claims that his request clearly arose in exceptional circumstances, which the Commission failed to consider in arriving at its decision to refuse disclosure. Further, the applicant claims that the Commission’s preference for confidentiality in the context of this case constitutes an abdication of duty to guarantee the right of relevant members of the public to seek an effective remedy and have a fair hearing within a reasonable time. |
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2.

Second plea in law, alleging that if, the exception claimed by the Commission was applicable, the Commission erred in failing to recognise that the applicant’s request arose in exceptional circumstances, and erred in holding that there was no overriding public interest in disclosure of the requested information. Thus, the applicant claims that the Commission’s decision constitutes an infringement of the last sentence of the third indent of Article 4(2) of Regulation No 1049/2001.

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The extreme measures implemented by Ireland in relation to inter-EU travel trespassed upon civil liberties and fundamental rights in a manner entirely unprecedented in the history of the Union. As a result, several fundamental freedoms were severely affected, including the right to freedom of movement of persons, the right to engage in work and the right of access to justice. Given the unprecedented nature of the restrictions implemented, coupled with the gross infringements upon fundamental rights, the applicant claims that his request clearly arose in exceptional circumstances, which the Commission failed to consider in arriving at its decision to refuse disclosure. Further, the applicant claims that the Commission’s preference for confidentiality in the context of this case constitutes an abdication of duty to guarantee the right of relevant members of the public to seek an effective remedy and have a fair hearing within a reasonable time.

| — | By refusing to disseminate the documentation at issue, relevant citizens are placed at a significant disadvantage and such refusal has grossly impeded their ability to effectively challenge the purported grounds for suspending fundamental rights related to travel within the EU. Moreover, the applicant claims that, by failing to disclose the documentation sought, the Commission has unjustifiably obstructed the ability of relevant EU citizens to hold their government to account for the severe infringements imposed upon on their rights guaranteed under EU law, and as such, this factor should have weighed in favour of honouring the principle of transparency as envisaged by the Treaties and Regulation No 1049/2001. |
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By refusing to disseminate the documentation at issue, relevant citizens are placed at a significant disadvantage and such refusal has grossly impeded their ability to effectively challenge the purported grounds for suspending fundamental rights related to travel within the EU. Moreover, the applicant claims that, by failing to disclose the documentation sought, the Commission has unjustifiably obstructed the ability of relevant EU citizens to hold their government to account for the severe infringements imposed upon on their rights guaranteed under EU law, and as such, this factor should have weighed in favour of honouring the principle of transparency as envisaged by the Treaties and Regulation No 1049/2001.

| — | The applicant asserts, finally, that it is common case that the right of access to information is a vital tool for defending fundamental rights and civil liberties in the EU, for ensuring access to justice in general and in environmental matters such as in the instant matter and for holding governments to account. In this case, the documentation at issue will either disclose concrete benefit(s) to public health (as envisaged by relevant Council Recommendations), which justify the measures implemented to tackle COVID-19, or it will not. In light of the fact that the impugned measures are unprecedented, extreme and onerous on relevant EU citizens wishing to exercise their right to freedom of movement and/or engage in work within the EU, access to the requested documentation is a matter of pressing public interest that will facilitate members of the relative public to take action to defend and protect their fundamental rights and hold the Government of Ireland to account for the extreme measures it has implemented. |
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The applicant asserts, finally, that it is common case that the right of access to information is a vital tool for defending fundamental rights and civil liberties in the EU, for ensuring access to justice in general and in environmental matters such as in the instant matter and for holding governments to account. In this case, the documentation at issue will either disclose concrete benefit(s) to public health (as envisaged by relevant Council Recommendations), which justify the measures implemented to tackle COVID-19, or it will not. In light of the fact that the impugned measures are unprecedented, extreme and onerous on relevant EU citizens wishing to exercise their right to freedom of movement and/or engage in work within the EU, access to the requested documentation is a matter of pressing public interest that will facilitate members of the relative public to take action to defend and protect their fundamental rights and hold the Government of Ireland to account for the extreme measures it has implemented.

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(1)  Editorial note: the documents to which the applicant seeks access are those received by the European Commission from Ireland in relation to the supposed benefits to public health resulting from the inter-EU travel restrictions in place since the beginning of the COVID-19 pandemic.

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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