Opinion of the Advocate General — ECLI:EU:C:2012:118
Date: 2012-03-01
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - successful;Appeal - successful
Origin: Germany

Summary of the Judgment 1. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Obligation on the institution not to disclose them without prior agreement (European Parliament and Council Regulation No 1049/2001, Art. 4(5)) 2. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Extent (European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5)) 3. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Procedural consequences — Obligations of the Member State and the European Union institution to state reasons for the decision refusing access — Extent (European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3)) 4. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Competence of the European Union judicature to review the validity of the refusal — Examination of the documents in camera (European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3)) 1. Where a Member State has made use of the option given to it by Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents to request that a specific document originating from that State should not be disclosed without its prior agreement, disclosure of that document by the institution requires the prior agreement of that Member State to be obtained. It follows, conversely, that an institution which does not have the agreement of the Member State concerned is not entitled to disclose the document. (see paras 55, 56) 2. The exercise of the power conferred on the Member State concerned by Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is delimited by the substantive exceptions set out in Article 4(1) to (3), with the Member State merely being given in this respect a power to take part in the institution’s decision. The prior agreement of the Member State referred to in Article 4(5) thus resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present. The decision-making process thus established by Article 4(5) therefore requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in Article 4(1) to (3). With regard to the scope of Article 4(5) of that regulation as regards the institution concerned, from the point of view of the person requesting access, the Member State’s intervention does not affect the nature of a European Union act of the decision subsequently addressed to him by the institution in reply to the request he has made to it for access to a document in its possession. (see paras 58, 60) 3. The institution to which the request is made, as the maker of a decision to refuse access to documents, is responsible for the lawfulness of the decision. Thus the institution cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons relied on by that State for refusing access to the document in question do not refer to the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Consequently, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on those exceptions and has given proper reasons for its position. On the other hand, the institution to which the request is made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to those exceptions. To insist on such an exhaustive assessment could lead to the institution being able, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection, duly reasoned, of the Member State from which the document originates. (see paras 61-64) 4. The application of Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents does not prevent the European Union judicature from carrying out a review of the institution’s refusal decision that goes beyond a prima facie review and involves a substantive assessment of the applicability in the particular case of the exceptions laid down in Article 4(1) to (3) of that regulation. If the Member State gives a reasoned refusal to allow access to the document in question and the institution concerned is consequently obliged to refuse the request for access, the person who has made the request enjoys judicial protection. It is within the jurisdiction of the European Union judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal was validly based on those exceptions, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the relevant Member State. Ensuring such judicial protection for the person who has made the request and to whom the institution has refused to grant access to one or more documents originating from a Member State following an objection by that State means that the European Union judicature must assess the lawfulness of the decision to refuse access in the specific case, in the light of all relevant factors, among the most important of which are the documents whose disclosure has been refused. To comply with the prohibition of disclosure of the documents in question without the prior agreement of the Member State concerned, the European Union judicature must consult the documents in camera, so that the parties themselves do not have access to them. (see paras 70, 72, 73)