Opinion of the Advocate General — ECLI:EU:C:2017:280
Date: 2017-04-06
Language of the case: English
Subject matter: Provisions governing the Institutions;Approximation of laws;Access to documents
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 7 September 2017 1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Scope — Application to detailed opinions delivered by the Commission in the context of Directive 98/34 — Included (Art. 288, fourth para., TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; European Parliament and Council Directive 98/34, as amended by Directive 98/48, Art. 9(2)) 2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to state reasons — Scope (European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3)) 3. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Purpose (European Parliament and Council Regulation No 98/34, as amended by Directive 98/48) 4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Scope — Refusal to grant access to a reasoned opinion delivered by the Commission in the context of Directive 98/34 — No justification for refusal with respect to the risk of less cooperation on the part of the Member States (European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; European Parliament and Council Directive No 98/34, as amended by Directive 98/48, Art. 9(2)) 1. The concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs. In this respect, a structured and formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties constitutes an investigation within the meaning of that provision. Those procedures do not necessarily have to have the purpose of detecting or pursuing an offence or irregularity. The concept of investigation could also cover a Commission activity intended to establish facts in order to assess a given situation. Similarly, in order for a procedure to be classified as an investigation, it is not necessary for the Commission’s position in performing its functions to take the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position could take the form, inter alia, of a report or a recommendation. In this respect, whether the Commission itself asks the Member States for the information or whether it receives it on the basis of legislation is not relevant for the purposes of determining whether the procedure should be classified as an investigation. Therefore, the detailed opinion delivered by the Commission in accordance with Article 9(2) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations, falls under an investigation procedure within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 which constitutes an official measure clarifying the legal position of that institution in relation to the compatibility of the draft technical regulations notified by the Member State concerned, with, inter alia, the free movement of goods and the freedom of establishment of operators. (see paras 45-48, 51-53) 2. See the text of the decision. (see para. 61) 3. See the text of the decision. (see para. 69) 4. Although the requirement of transparency underlying Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations does not prevent the Commission, on the basis of the circumstances of the particular case, from relying on the third indent of Article 4(2) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, in order to deny access to a detailed opinion delivered under Article 9(2) of Directive 98/34, the Commission must, however, demonstrate that access to the detailed opinion in question would specifically and actually undermine the objective of preventing a technical regulation that is incompatible with EU law being adopted. In this respect, no provision of Directive 98/34 provides for the confidentiality of detailed opinions of the Commission. In that context, the requirement of transparency underlying that directive normally applies to those detailed opinions. Therefore, a decision of the Commission refusing access to a detailed opinion issued by itself, on the ground that risk of less cooperation on the part of the Member States is sufficient justification, with respect to the third indent of Article 4(2) of Regulation No 1049/2001, for denying the request for access to the detailed opinion at issue, must be annulled. (see paras 78, 81-83)