Opinion of the Advocate General — ECLI:EU:C:2023:484
Date: 2023-06-15
Language of the case: Dutch
Subject matter: Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-451/22 – 1 
Case C-451/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
7 July 2022 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
29 June 2022 
Applicants:  
RTL Nederland BV 
RTL Nieuws BV 
(hereinafter jointly referred to as: ‘RTL’) 
  
Subject matter of the main proceedings 
The proceedings concern a request by RTL, a news organisation, for access to 
various documents relating to the downing of flight MH17 over Ukraine on 
17 July 2014, including all reports by the ‘European Coordination Centre for 
Accident and Incident Reporting Systems’ (‘Eccairs’) relating to Ukraine for 
2014. 
Subject matter and legal basis of the request for a preliminary ruling 
The request concerns the extent to which a news organisation can receive 
information from a database covered by Regulation No 376/2014 on the reporting, 
analysis and follow-up of occurrences in civil aviation 1 (‘the Occurrences 
 
1 Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 
on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation 
(EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 
2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) 
No 1321/2007 and (EC) No 1330/2007 (OJ 2014 L 122, p. 18). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-451/22 
 
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Regulation’), and if so, in what form. Specifically, the referring court doubts 
whether the absolute prohibition on the disclosure of such information laid down 
in national law is compatible with Article 15 of the Occurrences Regulation and 
with the right to freedom of expression and information enshrined in Article 11 of 
the Charter of Fundamental Rights of the European Union and in Article 10 of the 
ECHR.  
Article 267 TFEU 
Questions referred for a preliminary ruling 
‘1. What should be understood by details of ‘occurrences’ and ‘appropriate 
confidentiality’ as referred to in Article 15(1) of the Occurrences Regulation and 
in the light of the right to freedom of expression and information enshrined in 
Article 11 of the EU Charter and Article 10 of the ECHR?  
2. Is Article 15(1) of the Occurrences Regulation, in the light of the right to 
freedom of expression and information enshrined in Article 11 of the EU Charter 
and Article 10 of the ECHR, to be interpreted as being compatible with a national 
rule, such as that at issue in the main proceedings, by virtue of which no 
information received from reported occurrences may be disclosed?  
3. If the answer to Question 2 is in the negative: is the competent national 
authority permitted to apply a general national rule on disclosure by virtue of 
which information is not disclosed if disclosure would be outweighed by the 
interests concerned with, for example, relations with other States and international 
organisations, with inspection, control and monitoring by administrative 
authorities, with respect for privacy and with preventing natural and legal persons 
from being disproportionately advantaged and disadvantaged?  
4. When the general national rule on disclosure is applied, does it make any 
difference whether the information in question is contained in the national 
database or is information from or about reports contained in other documents, for 
example, policy documents?’  
Provisions of EU law relied on 
International law:  
Convention for the Protection of Human Rights and Fundamental Freedoms 
(ECHR), Article 10 (Freedom of expression) 
EU law: 
– Charter of Fundamental Rights of the European Union, Article 10 (Freedom of 
thought, conscience and religion) and Article 11 (Freedom of expression and 
information); 
RTL NEDERLAND AND RTL NIEUWS 
 
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– Regulation (EU) No 376/2014 of the European Parliament and of the Council 
of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil 
aviation, amending Regulation (EU) No 996/2010 of the European Parliament 
and of the Council and repealing Directive 2003/42/EC of the European 
Parliament and of the Council and Commission Regulations (EC) 
No 1321/2007 and (EC) No 1330/2007 (OJ 2014 L 122, p. 18), recitals 33 and 
45 of the preamble, and Articles 15 (Confidentiality and appropriate use of 
information) and 16 (Protection of the information source). 
Netherlands law (as applicable on 17 April 2019, the date on which the Minister 
rejected RTL’s request by decision): 
– Wet luchtvaart (Law on Aviation), Article 1(1) and Articles 7(1) and 7(2).  
– Wet openbaarheid van bestuur (Law on Government Information (Public 
Access)), Article 2(1), Article 3, Article 7(1), and Article 10(2). 
Succinct presentation of the facts and procedure in the main proceedings 
1 As RTL wishes to ascertain what the Netherlands authorities knew about 
occurrences surrounding the disaster involving flight MH17, it requested the 
minister van Justitie en Veiligheid (Minister for Justice and Security) by letter of 
10 January 2018, pursuant to the Wet openbaarheid van bestuur (‘Wob’), to 
provide various documents relating to the downing of this flight over Ukraine on 
17 July 2014, including the ‘Eccairs reports of 2014 relating to Ukraine’, which 
are relevant to the main proceedings.  
2 The competent minister rejected RTL’s request by decision of 17 April 2018. 
According to the Minister, in view of Article 10 of the Occurrences Regulation, 
the information in Eccairs may only be provided to the categories of interested 
parties listed in Annex II to the Occurrences Regulation. These are persons and 
organisations from the aviation sector and persons and organisations who 
investigate aviation safety. RTL does not belong to these categories. 
3 The Minister upheld the rejection of the request on appeal. The Minister added to 
the reasons for the rejection that Article 7(2) of the Wet luchtvaart also precludes 
the provision of the requested information.  
4 The Rechtbank (District Court) dismissed RTL’s appeal against that ruling as 
unfounded, considering that a special regime applies to Eccairs reports – namely, 
the secrecy of the information requested as regulated by Article 7(2) of the Wet 
luchtvaart and Article 15 of the Occurrences Regulation – which is a lex specialis 
in relation to the Wob. According to the Rechtbank, RTL’s attempt to rely on 
Article 10 of the ECHR does not succeed either. In the case of the latter, 
intervention is prescribed by law. Furthermore, RTL has not shown that very 
special circumstances exist that would render such intervention unjustified.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-451/22 
 
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5 RTL lodged an appeal against that judgment with the referring court, the Raad van 
State (Council of State, the Netherlands).  
The essential arguments of the parties in the main proceedings 
6 RTL argues that the Minister may not base the refusal of information simply on 
the Occurrences Regulation and the Wet luchtvaart as lex specialis in relation to 
the Wob.  
7 After all, the Occurrences Regulation does not contain an outright prohibition on 
disclosure. According to RTL, the strict disclosure regime of Article 15 of the 
Occurrences Regulation is mainly aimed at protecting the reporters and the 
persons who are mentioned in the occurrence reports. RTL deduces this from the 
term ‘details’ (the details of occurrences must be treated confidentially), from the 
prohibition on using the information to establish blame or liability and from the 
protection regime for certain persons in Article 16 of this Regulation.  
8 RTL also states that it wants to use the information requested in order to be able to 
verify whether the Netherlands has taken (in)sufficient (rapid) action after safety 
warnings had been issued. RTL maintains that it thereby fulfils the purpose of 
Article 15(2) of the Occurrences Regulation, namely, the maintenance or 
improvement of aviation safety.  
9 According to RTL, if a lex specialis situation must be considered to exist, this 
only applies to the integral version of a document. According to RTL, the limited 
provision of information is thus still possible. RTL relies mainly on Article 10 of 
the ECHR in this respect.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 According to Article 15(1) of the Occurrences Regulation, the Member States 
must take the necessary measures to ensure appropriate confidentiality of the 
details of occurrences which they have received. 
Articles 7(1) and 7(2) of the Wet luchtvaart serve to implement the Occurrences 
Regulation. It follows from these articles that no information relating to 
occurrences reported to the Minister may be disclosed. The law in question is a lex 
specialis in relation to the Wob. The referring court doubts whether the Wet 
luchtvaart correctly implements the provisions on the confidentiality of 
information set out in the Occurrences Regulation. It is of the view that it is not 
clear from the wording of the Occurrences Regulation whether it imposes an 
obligation to keep all information about occurrences out of the public domain. It 
refers in that regard to the judgment of the Court of Justice of 30 March 2017 in 
the Lingurár case, ECLI:EU:C:2017:244, in which the Court held in paragraph 18 
that Member States may adopt implementing measures for a regulation provided 
that they do not thereby obstruct its direct applicability or conceal its nature as an 
RTL NEDERLAND AND RTL NIEUWS 
 
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act of EU law; that they specify that they are acting in exercise of a discretion 
conferred on them under that regulation; and that they adhere to the parameters 
laid down thereunder.  
11 Article 16(8) of the Occurrences Regulation does allow Member States to 
establish a higher level of protection for reporters or for persons mentioned in 
occurrence reports. The referring court wonders how far that higher level may 
extend and whether paragraph 8 may be used as a pretext for not disclosing any 
information at all. In that regard, the referring court points out that Article 15 of 
the Occurrences Regulation must be interpreted in the light of the freedom of 
expression and information protected by Article 10 of the ECHR and Article 11 of 
the EU Charter. RTL, as a so-called public watchdog (see in that regard the 
judgment of the European Court of Human Rights of 8 November 2016, 
ECLI:CE:ECHR:2016:1108JUD001 803011, Magyar Helsinki Bizottság v. 
Hungary), wishes to inform the public about the disaster involving flight MH17. 
Whereas Article 10 of the ECHR does not require that all information be made 
public, an absolute prohibition on disclosure could, according to the referring 
court, be at odds with freedom of expression and information.  
12 It is against that background that the referring court sees cause to refer the first 
and second questions for a preliminary ruling.  
13 If the answer to the second question referred is in the negative and it is held that 
Article 15(1) of the Occurrences Regulation precludes the rules laid down in 
Articles 7(1) and 7(2) of the Wet luchtvaart, the referring court takes the view that 
it was not the Wet luchtvaart but rather, the Wob that was applicable, in particular 
the general national rules on disclosure. In that case, it questions how general 
national rules on disclosure are to be applied in the present situation. That is the 
subject of the third and fourth questions referred for a preliminary ruling.