Opinion of the Advocate General — ECLI:EU:C:2017:909
Date: 2017-11-28
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - successful
Origin: United Kingdom

Summary — Judgment of the Court (Grand Chamber), 4 September 2018 1. Action for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a decision by an institution refusing to grant access to documents — Disclosure by the institution of the documents requested in the course of the proceedings unaccompanied by a withdrawal of the decision refusing to grant access — Continued interest in bringing proceedings (Art. 263, fourth para., TFEU) 2. Appeal — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Appeal seeking to challenge a judgment of the General Court concerning access to documents in order to avoid the recurrence, in the future, of decisions of the institutions vitiated by unlawfulness (Rules of Procedure of the Court, Arts 149 and 190(1)) 3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Obligation for the institution to carry out a specific and individual examination of the documents — Extent — Exclusion from the obligation — Possibility of relying on general presumptions applying to certain categories of documents — Limits (European Parliament and Council Regulation No 1049/2001, Art. 4(2)) 4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation to make legislative documents directly accessible — Concept of ‘legislative document’ — Impact assessments carried out by the Commission with a view to the adoption of legislative initiatives — Included (Art. 10(3) TEU; European Parliament and Council Regulation No 1049/2001, recital 6 and Art. 12(2)) 5. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Scope — Impact assessments carried out by the Commission with a view to the adoption of legislative initiatives in respect of environmental matters — Included (European Parliament and Council Regulation No 1367/2006, Arts 1 and 2(1)(d) and (v)) 6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Refusal to grant access to documents drawn up in the context of impact assessments conducted by the Commission and relating to an ongoing decision-making process in environmental matters — Possibility of relying on the general presumption that the exception to the right of access applies — Precluded (Arts 11(2) TEU and 17(1) to (3) TEU; European Parliament and Council Regulation No 1049/2001, recital 6 and Art. 4(3), first para.) 7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Documents of a provisional nature (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.) 1. In the context of an action for annulment, the purpose of the action must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action or, as the case may be, the appeal must be liable, if successful, to procure an advantage for the party bringing it. Regarding an action brought against decisions of the Commission refusing to grant access to documents, the dispute retains its purpose where, despite the disclosure, in the course of the proceedings, of the various documents covered by the request for access, the decisions at issue have not been withdrawn by the Commission. (see paras 43, 45) 2. An applicant may, in certain cases, retain an interest in seeking annulment of the contested act and, as the case may be, the setting aside of the judgment of the General Court dismissing the action brought against that act in order to induce the author of that act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of the act in question will be repeated. The continuation of that interest presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question. Such is the case where an appeal is brought against a decision of the General Court whereby that court has recognised the existence of a general presumption that documents drawn up in the context of preparing an ongoing impact assessment in respect of which a request for access has been submitted are confidential, in so far as, first, such a presumption is likely to be implemented again in the future by the institution concerned in response to new requests for access to such documents and, second, it is likely that the applicant, as a non-profit organisation, one of whose tasks is to promote increased transparency and lawfulness in relation to the EU legislative process, will again request access to documents similar to the documents at issue in the future and that the institution concerned will refuse to grant that request on the basis of that general presumption. (see paras 48, 53, 54) 3. See the text of the decision. (see paras 78-80) 4. Recital 6 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents indicates that wider access should be granted to documents in cases where the EU institutions are acting in their legislative capacity. The possibility for citizens to scrutinise and be made aware of all the information forming the basis for EU legislative action is a precondition for the effective exercise of their democratic rights as recognised, in particular, in Article 10(3) TEU. The exercise of those rights presupposes not only that those citizens have access to the information at issue so that they may understand the choices made by the EU institutions within the framework of the legislative process, but also that they may have access to that information in good time, at a point that enables them effectively to make their views known regarding those choices. It is apparent from Article 12(2) of Regulation No 1049/2001, which implements the principle derived from recital 6 thereof, that not only acts adopted by the EU legislature, but also, more generally, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, fall to be described as ‘legislative documents’ and, consequently, subject to Articles 4 and 9 of that regulation, must be made directly accessible. In view of their purpose and content, impact assessments carried out with a view to the adoption, by the Commission, of legislative initiatives, are among the legislative documents covered by Article 12(2) of Regulation No 1049/2001. Indeed, such assessments are, according to the Impact Assessment Guidelines, key tools for ensuring that the initiatives of that institution and EU legislation are developed on the basis of transparent, comprehensive and balanced information. It is on the basis of that information that the Commission will be able to assess the appropriateness, the necessity, the nature and the content of such initiatives. Specifically, impact assessment reports contain a presentation of the various policy options under consideration, the study of the impact, advantages and disadvantages of those options, and a comparison of those options. The policy choices made in the legislative proposals put forward by the Commission are supported by the content of those assessments. It follows that impact assessment reports and the accompanying opinions of the Impact Assessment Board contain, in such a context, information constituting important elements of the EU legislative process, forming part of the basis for the legislative action of the European Union. Although the submission of a legislative proposal by the Commission is, at the impact assessment stage, uncertain, the disclosure of those documents is likely to increase the transparency and openness of the legislative process as a whole, in particular the preparatory steps of that process, and, thus, to enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process. Moreover, the importance for citizens of being able to have access to documents drawn up in the context of an impact assessment, even if the Commission’s decision-making process is still ongoing, is not called into question by the fact that a person requesting access had the possibility to take part in public consultations organised by that institution in the context of impact assessment procedures and that a certain number of documents relating to those assessments were already publicly available at the time a decision refusing to grant access was adopted. Although such consultations are also intended to ensure the openness of the Commission’s decision-making process and the participation of citizens in that process, they are not to replace the possibility for those citizens to be granted access, upon request, to impact assessment reports and to the opinions of the Impact Assessment Board. (see paras 84, 85, 90-94) 5. See the text of the decision. (see paras 96-98) 6. Although the Commission must, under Article 17(1), (2) and (3) TEU, act in a fully independent manner and exclusively in the general interest when carrying out impact assessments, the impact assessment procedure is not a type of procedure which, as such, has features that preclude, in principle, full transparency being granted. On the contrary, that procedure is conducted with the objective of ensuring that the Commission’s decision-making process is transparent and open. The same must apply a fortiori where that procedure is part of a legislative process in respect of environmental matters. In addition, by increasing the legitimacy of the Commission’s decision-making process, transparency ensures the credibility of that institution’s action in the minds of citizens and concerned organisations and thus specifically contributes to ensuring that that institution acts in a fully independent manner and exclusively in the general interest. It is rather a lack of public information and debate which is likely to give rise to doubts as to whether that institution has fulfilled its tasks in a fully independent manner and exclusively in the general interest. It is true that it cannot be ruled out, in the event of disclosure of impact assessment reports and the opinions of the Impact Assessment Board regarding those reports before the Commission has made a decision regarding a potential proposal, that third parties may attempt to influence or exert pressure on the policy choices to be made by that institution or that interested parties who have submitted observations during the public consultation organised by the Commission in the context of the impact assessment procedure may submit further remarks regarding the options and scenarios under consideration by that institution, or further criticisms thereof. However, EU law does not, in principle, require that institution to maintain constant dialogues with interested parties in individual cases. In that regard, although Article 11(2) TEU provides that the EU institutions are to maintain an open, transparent and regular dialogue with representative associations and civil society, that provision in no way means that the Commission is required to respond, on the merits and in each individual case, to the remarks it may have received following disclosure of a document under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. In addition, the expression by the public or the interested parties of their views on the choices made and the policy options envisaged by the Commission in the context of its initiatives, in particular its legislative initiatives in respect of environmental matters, before that institution has made a decision regarding the planned initiative, is an integral part of the exercise by EU citizens of their democratic rights. It follows that, although the Commission must be able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted, it cannot be considered that the protection of the Commission’s power of initiative and the preservation of that institution’s ability to exercise that power in a fully independent manner and exclusively in the general interest requires, in principle, that documents drawn up in the context of an impact assessment may, generally, remain confidential until that institution has made such a decision. (see paras 103, 104, 106-109) 7. The first subparagraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents concerns access to documents for internal use relating to an issue on which the EU institution concerned has not yet made a decision. That provision does not, either by its wording or by reference to the interest that it protects, rule out the possibility of requesting access to documents of a provisional nature. That provisional nature is not, as such, capable of establishing, generally and independently of a specific and individual examination of each of the documents requested, a risk that the Commission’s decision-making process would be seriously undermined. Indeed, such a risk depends on factors such as the state of completion of the document in question and the precise stage of the decision-making process in question at the time when access to that document is refused, the specific context in which that process takes place, and the issues still to be discussed internally by the institution concerned. (see para. 111)