Judgment — ECLI:EU:T:2015:848
Date: 2015-11-13
Language of the case: English
Court formation: Second Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded
Origin: United Kingdom

Summary — Judgment of the General Court (Second Chamber), 13 November 2015 1. 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. 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 –Documents established in the context of impact assessments by the Commission, relating to a decision-making process in environmental matters — Refusal to grant access — Obligation to state reasons — Scope (Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.) 3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and adoption — Requirement that the institution should examine the documents specifically and individually — Scope — Exclusion of the obligation — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits (European Parliament and Council Regulation No 1049/2001, Art. 4) 4. 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 — Conditions — Concrete, actual and serious detriment to that process — Scope (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.) 5. 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 of access to documents established in the context of impact assessments by the Commission, relating to a decision-making process in environmental matters — Possibility of relying on the general presumption that the exception to the right of access applies (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.) 6. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) 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 — Refusal of access to documents established in the context of impact assessments by the Commission, relating to a decision-making process in environmental matters — Possibility of relying on the general presumption that the exception to the right of access applies — Individual interest of the person concerned — Irrelevant (European Parliament and Council Regulation No 1049/2001, Art. 4) 8. European Ombudsman — Decisions — Not binding on the EU judicature (Art. 228 TFEU) 9. 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 — Overriding public interest justifying the disclosure of documents — Concept — Interest in the development of a policy proposal — Not included (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.) 1. See the text of the decision. (see paras 31, 32) 2. Article 296 TFEU cannot be interpreted as requiring the Commission to exclude, as a precaution, in the grounds of a decision refusing access to documents based on Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, all possible arguments which might, at a later stage, be put forward to support objections to its analysis. Therefore, where the applicant has not challenged, in its confirmatory request for access, the applicability of the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission is entitled to confine itself to setting out the positive reasons why it considers that that provision is applicable, and is not required to reject or to criticise other possible interpretations of that provision. (see para. 35) 3. Where an institution decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by the exception — among those laid down in Article 4 of Regulation No 1049/2001 — upon which it is relying. Moreover, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception. However, it is possible for the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a generally similar nature are likely to apply to requests for disclosure relating to documents of the same nature. In order for a general presumption to be validly relied upon against a person requesting access to documents on the basis of Regulation No 1049/2001, it is necessary that the documents requested belong to the same category of documents or be documents of the same nature. The criterion is both a qualitative and quantitative criterion, namely, the fact that the documents requested relate to one and the same procedure, and not a purely quantitative criterion, namely, the lesser or greater number of documents sought by its requests for access. Moreover, the application of general presumptions is essentially dictated by the overriding need to ensure that the procedures at issue operate correctly and to guarantee that their objectives are not jeopardised. Accordingly, a general presumption may be recognised on the basis that access to the documents involved in certain procedures is incompatible with the proper conduct of such procedures and the risk that those procedures could be undermined, on the understanding that general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties. The application of specific rules provided for by a legal measure relating to a procedure conducted before an EU institution for the purposes of which the documents requested were produced is one of the criteria for recognising a general presumption. (see paras 59, 63, 66, 67, 75) 4. The application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 requires it to be established that access to the document in question, drawn up by the institution for its internal use, was likely specifically and actually to undermine the protection of the institution’s decision-making process, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical. In addition, in order to be covered by the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process has to be seriously undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision making process. The assessment of seriousness depends on all the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question. However, the institutions are not required to submit evidence to establish the existence of such a risk. It is sufficient in that regard if the contested decision contains tangible elements from which it can be inferred that the risk that the decision-making process would be undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical, showing, in particular, the existence, on that date, of objective reasons on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if the documents requested by the applicant were disclosed. (see paras 60-62) 5. When the Commission prepares and develops policy proposals, it must ensure that it acts in a fully independent manner and that its proposals are made exclusively in the general interest. The Commission may rely on impact assessments drawn up concerning the preparation and development of such proposals. In particular, an impact assessment enables information to be gathered on the basis of which the Commission will be able to assess, inter alia, the appropriateness, the necessity, the nature and the content of such proposals. Since an Impact assessment report contains a comparison of the various policy options contemplated at that stage, the disclosure of that report, even at the draft stage, together with the opinions given by the Board in that regard brings with it an increased risk that third parties will attempt, outside of the public consultation organised by the Commission, to exercise targeted influence on the Commission’s choice of policy option and the content of the policy proposal which that institution is led to adopt. Therefore, for the purposes of applying the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, the Commission is entitled to presume, without carrying out a specific and individual examination of each of the documents drawn up in the context of preparing an impact assessment, that the disclosure of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal. That general presumption may apply for as long as the Commission has not made a decision regarding a potential policy proposal, that is to say, until a policy initiative has been, depending on the circumstances, either adopted or abandoned. It applies regardless of the nature — legislative or otherwise — of the proposal envisaged by the Commission. (see paras 83, 85, 87, 96, 97, 99, 100) 6. See the text of the decision. (see para. 117) 7. The intentions and interests pursued by the applicant’s requests for access also have no relevance to the application of a general presumption pursuant to which the Commission was entitled to refuse to grant access to the documents requested. (see para. 121) 8. The findings of the European Ombudsman as such are not binding on the EU judicature, and may constitute only an indication of infringement, by the institution concerned, of the principle of sound administration. Proceedings before the Ombudsman, who does not have the power to make binding decisions, are for EU citizens an extrajudicial alternative remedy to an action before the EU judicature, which meets specific criteria and does not necessarily have the same objective as legal proceedings. A fortiori, interpretations of EU law by the Ombudsman cannot be such as to bind the EU judicature. (see paras 122, 123) 9. Regarding the argument that the public has an interest in understanding and following the development of impact assessments, which form the basis of legislative proposals, in order to be in a position to exercise its right to participate in democratic processes by generating public debate, it should be borne in mind that the interest of an applicant in supplementing the information held by the institution concerned and in taking an active part in an ongoing procedure does not constitute an overriding public interest, even if that applicant acts as a non-governmental organisation, in accordance with the objects stated in its governing documents, which consist in the protection of the environment. By analogy, the interest of stakeholders who have taken part in a consultation organised by the Commission as part of the completion of an impact assessment and of any other interested party in supplementing the information held by that institution following such a consultation and in taking an active part in the procedure of developing the Impact assessment report, or even in the development of a policy proposal, does not constitute an overriding public interest, even if the party in question is a not-for-profit organisation whose object is the protection of the environment. (see paras 150, 151)