Opinion of the Advocate General — ECLI:EU:C:2009:592
Date: 2009-10-01
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Belgium;Sweden

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 – Protection of court proceedings (European Parliament and Council Directive No 1049/2001, Art. 4(2)) 2. European Union – 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 (Arts 226 EC and 228 EC; European Parliament and Council Directive No 1049/2001, Art. 4(2)) 3. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of court proceedings (European Parliament and Council Directive No 1049/2001, Art. 4(2)) 1. Pleadings lodged before the Court of Justice in court proceedings are wholly specific, for they are inherently more a part of the judicial activities of the Court than of the administrative activities of the Commission, those latter activities not requiring, moreover, the same breadth of access to documents as the legislative activities of a European Union institution. Those pleadings are drafted exclusively for the purposes of those court proceedings and constitute the essential element thereof. It is clear, both from the wording of the relevant provisions of the Treaties and from the broad logic of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and the objectives of the relevant European Union rules, that judicial activities are as such excluded from the scope, established by those rules, of the right of access to documents. The protection of court proceedings implies, in particular, that observance of the principles of equality of arms and the sound administration of justice must be ensured. With regard, first, to equality of arms, it should be noted that if the content of the Commission’s pleadings were to be open to public debate, there would be a danger that the criticism levelled against them, whatever its actual legal significance, might influence the position defended by the Commission before the European Union Courts. Such a situation could well upset the vital balance between the parties to a dispute before those Courts – the state of balance which is at the basis of the principle of equality of arms – inasmuch as only the institution concerned by an application for access to its documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure. The principle of equality of arms – together with, inter alia, the principle of audi alteram partem – is no more than a corollary of the very concept of a fair hearing. As the Court has held, the principle of audi alteram partem must apply to all parties to proceedings before the European Union Courts, whatever their legal status. The fact that obligations of transparency are imposed by Regulation No 1049/2001 only on the institutions concerned cannot, in the context of pending court proceedings, lead the procedural position of those institutions to be undermined vis-à-vis the principle of equality of arms. As regards, secondly, the sound administration of justice, the exclusion of judicial activities from the scope of the right of access to documents, without any distinction’s being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity. Disclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings. It is therefore appropriate to allow a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings, for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001, while those proceedings remain pending. If third parties were able, on the basis of Regulation No 1049/2001, to obtain access to those pleadings, the system of procedural rules governing the court proceedings before the European Union Courts would be called into question. Such a general presumption does not exclude the right of an interested party to demonstrate that a given document, disclosure of which has been applied for, is not covered by that presumption. (see paras 77-79, 85-89, 91-94, 100, 103) 2. It cannot be presumed that disclosure of pleadings lodged in a procedure which ultimately led to the delivery of a judgment on the basis of Article 226 EC undermines investigations which could lead to proceedings being brought under Article 228 EC. The procedure established under Article 226 EC is designed to obtain a declaration that the conduct of a Member State is in breach of European Union law and to terminate that conduct, while the procedure provided for under Article 228 EC has a much narrower ambit, being designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations. It follows that, once the Court of Justice has held, by a judgment delivered on the basis of Article 226 EC, that a Member State has failed to fulfil its obligations, the continuation of negotiations between that Member State and the Commission is no longer designed to establish the existence of the infringement – which is precisely what the Court of Justice has found – but to determine whether the necessary conditions for the bringing of an action under Article 228 EC are met. In addition, as regards the possibility that the infringement proceedings may lead to an amicable settlement, it is clear that, once the infringement has been found by judgment of the Court of Justice delivered on the basis of Article 226 EC, an amicable settlement is no longer possible in the case of that infringement. (see paras 119-122) 3. There are no longer grounds for presuming that disclosure of the pleadings would undermine the judicial activities of the Court, for those activities come to an end with the closure of the proceedings. Admittedly, it is not impossible that disclosure of pleadings relating to court proceedings, closed but connected to other proceedings still pending, may create a risk that the later proceedings could be undermined, especially when the parties to the pending case are not the same as those to the case which has been closed. In such a situation, if the Commission were to use the same arguments in support of its legal position in both sets of proceedings, disclosure of its arguments in the pending proceedings could give rise to the risk that they might be undermined. Nevertheless, such a risk depends on a number of factors, such as the degree of similarity between the arguments put forward in the two cases. If the Commission’s pleadings are repeated only in part, partial disclosure could be sufficient to prevent any risk of undermining the pending proceedings. Accordingly, only a specific examination of the documents to which access is requested can enable the Commission to establish whether their disclosure may be refused on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. (see paras 131-134)