62013CC0612_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This appeal derives from the refusal, based on the need to protect the purpose of investigations, of a request for access to documents and thus affords the Court the opportunity to refine its case-law on access to documents of the institutions, (2) specifically in relation to the exception provided for in the third indent of Article 4(2) of Regulation (EC) No 1049/2001. (3) One of the issues discussed in this case is in fact the definition of the concept of ‘investigations’: it is a question of whether that concept includes all activities that may lead to an infringement procedure or only activities that are carried out once it has in fact been decided to initiate such a procedure.
2. This is not the only issue that will have to be clarified in these proceedings, since, should it be concluded that the activities at issue constitute ‘investigations’ within the meaning of Regulation (EC) No 1049/2001, it would then have to be determined whether the third indent of Article 4(2) of the regulation is compatible with Article 4(4)(c) of the Aarhus Convention, (4) which would bring Regulation (EC) No 1367/2006 (5) into play and, more importantly, would raise the issue of relying on that Convention for the purpose of interpreting Regulation (EC) No 1049/2001.
I – Legal context
A – International Law
3. It is stated in the preamble to the Aarhus Convention that
‘...
Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,
Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,
…
Acknowledging that public authorities hold environmental information in the public interest,
…’
4. In accordance with Article 1 of the Aarhus Convention, ‘[i]n order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.’
5. Under the first paragraph of Article 2(2)(d) of the Convention, ‘public authority’ means ‘[t]he institutions of any regional economic integration organisation referred to in Article 17 which is a Party to this Convention’.
6. Pursuant to Article 3(1) of the Convention ‘[e]ach Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention’.
7. Article 4 of the Aarhus Convention provides as follows:
‘1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:
(a) Without an interest having to be stated;
(b) In the form requested unless:
(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or
(ii) The information is already publicly available in another form.
2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
3. A request for environmental information may be refused if:
…
(c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.
4. A request for environmental information may be refused if the disclosure would adversely affect:
…
(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
…
The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.
…’
B – EU law
1. Regulation (EC) No 1049/2001
8. Under Article 2(1) of Regulation (EC) No 1049/2001 ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.’
9. Under the heading ‘Exceptions’, Article 4(2) of the regulation provides that ‘[t]he institutions shall refuse access to a document where disclosure would undermine the protection of:
– …
– …
– the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.’
2. Regulation (EC) No 1367/2006
10. Recital 15 in the preamble to Regulation No 1367/2006 states as follows:
‘Where Regulation (EC) No 1049/2001 provides for exceptions, these should apply subject to any more specific provisions in this Regulation concerning requests for environmental information. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment. The term “commercial interests” covers confidentiality agreements concluded by institutions or bodies acting in a banking capacity.’
11. Article 1(1) of Regulation No 1367/2006 provides that the objective of the regulation is ‘[t]o contribute to the implementation of the obligations arising under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, hereinafter referred to as “the Aarhus Convention”, by laying down rules to apply the provisions of the Convention to Community institutions and bodies, in particular by:
(a) guaranteeing the right of public access to environmental information received or produced by Community institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right;
…’
12. Article 3 of Regulation No 1367/2006 makes the following provision:
‘Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.
…’
13. Pursuant to Article 6(1) of Regulation No 1367/2006 ‘[a]s regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.’
II – Facts
14. ClientEarth is a company governed by English law one of whose objects is the protection of the environment. On 8 September 2010 it submitted to the Commission an application for access to certain documents under Regulation No 1049/2001 and Regulation No 1367/2006. The application concerned, specifically, access to various documents mentioned in the ‘Management Plan 2010. DG Environment’ published on the Commission’s website.
15. On 29 October 2010, the Commission rejected the application in part, maintaining, in all but one of the cases, that refusal of access to the documents was covered by the exceptions provided for in the third indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001 (protection of the purpose of inspections, investigations and audits and protection of the decision-making process of the institutions).
16. On 10 November 2010, ClientEarth submitted, pursuant to Article 7(2) of Regulation No 1049/2001, a confirmatory application in respect of the partial refusal. Having received no reply from the Commission, on 21 February 2011 ClientEarth brought an action before the General Court against the implied refusal of its request. Finally, on 30 May 2011, the Commission adopted an express decision on the confirmatory application granting ClientEarth full access to the contents of 22 studies — except for the names of the authors of some of the studies — on the conformity of the legislation of Member States with EU environmental law, which had been carried out by a private undertaking on behalf of the Commission and received by it in 2009. However, the Commission granted only partial access to a further 41 studies.
17. In respect of each of the latter studies, access was provided to the cover page, the table of contents, the list of abbreviations used, an annex containing the legislation examined, and various sections headed ‘Introduction’; ‘Overview of the Legal Framework of the Member State’; and ‘Framework for Transposition and Implementation’. On the other hand, the Commission refused access to the sections headed ‘Summary Datasheet’, ‘Legal Analysis of the Transposing Measures’ and ‘Conclusions’, and an annex containing a table of concordance between the legislation of the Member State concerned and the relevant EU law.
18. The Commission divided the studies at issue into two categories. The first category comprised one study on the transposition of EU law where the assessment had been recently started in communication with the Member State concerned. The second category comprised the remaining 40 studies on which dialogue with the Member States concerned had progressed further.
19. The Commission based its refusal to grant access on three exceptions:
(A) Protection of the purpose of investigations (third indent of Article 4(2) of Regulation No 1049/2001). According to the Commission, the studies concerned had been carried out in order to enable it to monitor the transposition of several directives by the Member States and, if necessary, to initiate the procedure for failure to fulfil obligations under Article 258 TFEU (‘infringement proceedings’ or ‘infringement procedure’) against them. As regards the study included in the first category mentioned above, the Commission stated that it had not yet reached a conclusion on the transposition of the directive concerned. In its opinion, disclosure of the data and conclusions contained within that study — which had not yet been verified and on which the Member State concerned had not had the opportunity to respond — would have exposed that Member State to possibly unjustified criticism and would have undermined the climate of mutual trust required to assess the transposition of the directive in question. As regards the studies at issue in the second category mentioned above, the Commission stated that, in some cases, it had initiated infringement proceedings against the Member States concerned and that, in other cases, it had not yet decided whether such proceedings should be initiated. In the Commission’s view, disclosure of the studies at issue would have undermined the climate of mutual trust necessary to resolve disputes between the Commission and the Member States concerned without having to resort to the judicial stage of such proceedings.
(B) Protection of the decision-making process of the institutions (first subparagraph of Article 4(3) of Regulation No 1049/2001). The Commission maintained that those studies had been carried out at its request for purely internal use in the preliminary stage of an investigation concerning the transposition of EU law. The Commission added that it was entitled not to endorse the conclusions of those studies and to use other tools of investigation, including its own internal assessment and information obtained from the dialogue with the Member States concerned. The Commission considered that, since it had not yet made a decision on the conformity of the national legislation with EU law or on whether it was appropriate to initiate infringement proceedings, a matter in respect of which the Commission had broad discretion, disclosure could have undermined its internal decision-making process, which could have exposed it to undue external pressure.
(C) Protection of the privacy and the integrity of the individual (Article 4(1)(b) of Regulation No 1049/2001). In the Commission’s view, this exception applied to the disclosure of the names of the authors of some of the studies requested.
20. Lastly, the Commission concluded that there was no overriding public interest that justified disclosure of the documents at issue. The Commission considered that the public interest was better served by protecting the climate of mutual trust between the Member States and the Commission itself, on the one hand, and by protecting the Commission’s discretion to take administrative decisions in relation to possible infringements, on the other hand. Moreover, the Commission stated that the confirmatory application did not contain any arguments capable of demonstrating the existence of an overriding public interest justifying disclosure.
21. ClientEarth brought an action for annulment before the General Court, which was based on a total of seven pleas in law: (1) infringement of Article 8(1) and (2) of Regulation No 1049/2001 in that the Commission unlawfully extended the time-limit for responding to the confirmatory application; (2) infringement of Article 4(1), (2) and (4) of the Aarhus Convention in that that provision does not allow any exception to the right of access to documents based on the protection of the purpose of investigations other than those of a criminal or disciplinary nature; (3) infringement of the obligation actively to disseminate environmental information established in Article 5(3) to (7) of the Aarhus Convention and Article 4(2)(b) of Regulation No 1367/2006; (4) infringement of the third indent of Article 4(2) of Regulation No 1049/2001 in that the Commission disregarded the limits attaching to the exception to the right of access to documents laid down by that provision; (5) infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001 in that the risk that full disclosure of the studies at issue might undermine the Commission’s decision-making process was hypothetical and was not reasonably foreseeable; (6) infringement of Article 4(2) in fine
and (3) in fine
of Regulation No 1049/2001, owing to the existence of an overriding public interest justifying disclosure; and (7) the serious and recurrent infringement by the Commission of Article 8(1) and (2) of Regulation No 1049/2001 and Article 4(1) of the Aarhus Convention, which, in ClientEarth’s view, required the adoption of deterrent measures by the General Court.
III – The judgment of the General Court
22. The action was dismissed by the General Court by judgment of 13 September 2013. (6)
23. The General Court divided the pleas into two groups: in the first group of pleas, the grounds of the contested decision were challenged as they were considered vitiated by error, whereas the pleas in the second group did not concern errors in the grounds of the decision. So far as is of interest here, the General Court concluded that since ClientEarth had failed to demonstrate that the Commission had made an error in refusing access in order to protect the purpose of its investigations, there was therefore no need to examine whether the Commission had also erred in relying on the purpose of protecting its decision-making processes. Lastly, the General Court held that ClientEarth had also failed to establish the existence of an overriding public interest justifying disclosure of the documents concerned.
IV – The appeal
24. The appeal brought by ClientEarth is based on three grounds of appeal: (A) error in the interpretation of the concepts of ‘investigations’ and ‘undermin[ing] the protection of … the purpose of … investigations’ within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001; (B) error of law on account of infringement of Article 4(1) and (4) of the Aarhus Convention; (C) misinterpretation of the concept of ‘overriding public interest’ within the meaning of Article 4(2) in fine
of Regulation No 1049/2001.
V – The procedure before the Court of Justice
A – First ground of appeal
25. The first ground of appeal is divided into two parts. The first part challenges the reasons which led the General Court to consider that the studies at issue are part of a Commission investigation. In ClientEarth’s view, the concept of ‘investigation’ requires there to be a formal decision by the Commission, which in the case at hand would entail the initiation of infringement proceedings. In the absence of such a decision — and it could even be accepted that the decision does not immediately precede the document concerned, provided that the latter is an act preparatory to the decision —, the documents concerned are not part of an administrative investigation file covered by a general presumption of confidentiality.
26. The Commission maintains that any document whose purpose is to enable the Commission to verify compliance with EU law by the Member States relates to an investigation within the meaning of Article 4(2) of Regulation No 1049/2001. For those purposes, it is, in its view, irrelevant whether the first assessment of the compliance of the law of a Member State with EU law is conducted by the Commission’s own services or by a third party at the request of the Commission.
27. In the second part of the first ground of appeal, ClientEarth claims that, even if it is accepted that the studies at issue could be considered to form part of an investigation, the General Court erred in holding that their disclosure could undermine the protection of the purpose of investigations, thus acknowledging that the Commission has the right to apply a general presumption of confidentiality. In this regard, it points out that the documents at issue were specific documents whose disclosure would not have undermined the purpose of subsequent infringement proceedings.
28. The Commission, for its part, concurs with the judgment under appeal, which, in its opinion, is in keeping with the case-law of the Court of Justice.
B – Second ground of appeal
29. The second ground of appeal is based on five arguments. First, ClientEarth submits that the General Court has disregarded the obligation to interpret Article 4(4)(c) of the Aarhus Convention in a restrictive way. Second, it complains that the General Court examined the direct applicability of Article 4 of the Aarhus Convention, while that was not necessary for the purpose of reviewing the legality of the third indent of Article 4(2) of Regulation No 1049/2001 in the light of that Convention. Third, ClientEarth maintains that the judgment under appeal misapplies the obligation to interpret the Aarhus Convention in accordance with Articles 26 and 31 of the Vienna Convention on the Law of Treaties, as it has attributed to Article 4(4)(c) of the Convention a meaning inconsistent with both its letter and spirit. Fourth, the General Court also erred in holding that Article 4(4)(c) of the Aarhus Convention is not directly applicable to the institutions of the European Union. Lastly, ClientEarth submits that the judgment under appeal erroneously accepted an exception to the application of the Aarhus Convention on the basis of the ‘specificities’ of the European Union.
30. The Commission, with the support of the European Parliament and of the Council, contends that the General Court did not make any error and that it followed the case-law of the Court of Justice, in particular with regard to the three conditions that must be fulfilled in order for the Courts of the European Union to examine the compatibility of an EU act with an international agreement. For the Commission, the Aarhus Convention has been incorporated into EU law by means of Regulation No 1367/2006, in the light of which the legality of the contested decision must be reviewed. Furthermore, the three institutions submit that the exceptions provided for in the Convention are framed in terms that allow the European Union to incorporate them into its legal order protecting the legitimate interests recognised under Article 4 of Regulation No 1049/2001.
C – Third ground of appeal
31. ClientEarth contests the finding of the General Court that the ‘overriding public interest’, within the meaning of Article 4(2) in fine
of Regulation No 1049/2001, which may justify disclosure of a document which would undermine the legal interests protected by an exception, must be distinct from the principles which underpin the regulation, namely the right of access to information and the principle of transparency, and outweigh the need to protect the documents in question. ClientEarth maintains that the General Court, in criticising it for having done no more than refer to non-specific considerations and for having failed to establish that the principle of transparency should prevail over the reasons justifying the refusal to disclose the documents, reversed the burden of proof which, in accordance with the case-law, lies in this case with the Commission.
32. The Commission contends that, as it was able to refuse access to the documents at issue on the basis of a general presumption, it was for ClientEarth to demonstrate the existence of an overriding public interest capable of justifying the disclosure of such documents: in its view, ClientEarth has failed to do that.
VI – Assessment
A – First ground of appeal
1. First part: ‘Investigation’ and the existence of an infringement procedure
33. In the first part of the first ground of appeal ClientEarth maintains that the concept of ‘investigation’ within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 requires there to be a formal decision by the Commission to open a procedure. The Commission contends, on the contrary, that any document whose purpose is to enable the Commission to verify compliance with EU law by the Member States relates to an ‘investigation’ within the meaning of the aforementioned provision.
34. The crux of the problem therefore lies in determining whether the concept of ‘investigations’ within the meaning of Regulation No 1049/2001 requires the existence of a formal decision to initiate an infringement procedure or whether it suffices that the documents in question may lead the Commission to decide to initiate such a procedure.
35. In support of the argument that under EU law no investigation procedure may be initiated without an express decision of the Commission on the matter, ClientEarth has referred to the judgment in Liga para a Protecção da Natureza (LPN)
v Commission . (7) However, in my view, neither that judgment nor the case-law cited in it can support the conclusion put forward by the appellant, precisely because in that case the documents in question were part of the administrative file relating to an infringement procedure that was already under way. In fact, the present case is the first occasion on which the question arises as to whether ‘investigations’ may begin before the formal initiation of the infringement procedure; there are, therefore, no previous judgments in that regard that can be of immediate assistance.
36. Having clarified that point, it is necessary to start by noting that the circumstances of the studies at issue are not the same so far as the existence of a specific infringement procedure is concerned. Indeed, as it is stated in the judgment under appeal, (8) one of the studies at issue concerned a Member State in respect of which the Commission had not yet reached a conclusion as to whether the Directive concerned had been correctly transposed. As regards the remaining studies, ‘in some cases’ they had given rise to the initiation of infringement proceedings against the Member States concerned, while in ‘other cases’ it had not yet been decided whether such proceedings should be initiated.
37. The General Court disregarded this difference and included within the concept of ‘investigation’ both studies that related to cases where infringement proceedings had subsequently been initiated and studies in respect of whose subject-matter no decision had yet been taken about initiating such proceedings. Notwithstanding that difference, the determining factor for the General Court was that ‘the studies at issue were not produced to obtain information or for academic purposes, but as targeted instruments designed to detect specific infringements of EU law’, (9) from which it follows, without more, ‘that the studies at issue are part of an investigation conducted by the Commission, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001’. (10)
38. The General Court based that lack of differentiation between (i) studies that gave rise to proceedings and (ii) studies that did not have that result on settled case-law of the Court of Justice to the effect that ‘the Commission may legitimately rely on the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse access to documents relating to investigations of a possible contravention of EU law which might lead to the initiation of infringement proceedings or which have in fact led to the initiation of such proceedings ’ (11) as ‘[i]n those circumstances, refusal of access has been considered justified because the Member States concerned are entitled to expect the Commission to observe confidentiality as regards investigations, even where a period of time has elapsed since the closure of those investigations (see API
v Commission, (12) … paragraph 120 and case law cited).’ (13)
39. As the General Court further reasoned, ‘the studies at issue are targeted documents, the purpose of which is the analysis of the transposition by a specific Member State of a specific directive, which are intended to form part of a Commission file relating to that transposition. Where infringement proceedings have already commenced, it cannot be held that those studies are not part of the file relating to those proceedings, since those studies are among the material on which the Commission based its decision to commence those proceedings. As regards studies in respect of which the Commission has not yet initiated infringement proceedings, it is equally necessary to maintain their confidentiality, since once information is in the public domain it cannot be withdrawn when the proceedings are commenced, as the Commission rightly submits.’ (14)
40. Lastly, as regards ‘studies in respect of which the Commission has not yet initiated infringement proceedings’, the General Court did not find it necessary that such proceedings should ultimately be initiated, as it took the view that ‘the exception relating to the protection of the purpose of investigations does not apply solely to documents relating to infringement proceedings which have been commenced but also to documents concerning investigations the outcome of which might be such proceedings’. (15) It might therefore be the case that no proceedings are initiated and, despite that, the exception still applies.
41. In my opinion, studies that have already led to the initiation of infringement proceedings at the time an application for access to them is submitted, and studies that precede, more or less immediately, the initiation of such proceedings at the time when access to them is requested, may, in principle, be treated in the same way. However, in my view, those cases cannot encompass studies which neither have given rise to the initiation of proceedings nor are a preparatory act as regards the actual initiation of such proceedings.
42. It must be concluded that infringement proceedings cannot be initiate d in a vacuum, but must necessarily be preceded by a finding of a doubt for which there is at least some basis concerning the legality of the conduct of the Member State concerned, which requires that the Commission have some degree of information. This would militate in favour of a broad interpretation of the concept of ‘investigation’ which covers activities prior to the formal initiation of proceedings. In fact, as the Commission submits in its response to the appeal, (16) in practice all procedures are preceded by at least some degree of investigation and the Court of Justice simply accepts, more or less explicitly, this practice. (17)
43. None the less, this minimum degree of prior investigation must, in any event, relate to the possible initiation of infringement proceedings. What I mean is that, contrary to the opinion expressed by the Commission at the hearing in response to one of my questions, ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, cannot be confused with the general ‘overseeing’ activity which Article 17(1) TEU attributes to the Commission with regard to the ‘application of Union Law’. There is, indeed, a clear difference of degree between the investigation
referred to in the third indent of Article 4(2) of Regulation No 1049/2001 and the information gathering necessary to enable the Commission to fulfil its role as guardian of the Treaties .
44. Overseeing the application of EU law, promoting the general interest of the Union or ensuring the application of the Treaties, like all the other functions attributed to the Commission under Article 17(1) TEU, are activities of principle that are given concrete expression as specific legal functions only within the framework of the unique powers conferred on the Commission by the Treaties. Thus, the fact that the Commission is empowered to ensure the correct application of primary law and to oversee the application of EU law does not entitle it to adopt any measures or provisions that it deems appropriate to achieve that objective, but only those provided for in the specific procedures established by the EU legal order.
45. Adopting the Commission’s approach would be tantamount to excessively extending an exception to the right of access to information which, like all exceptions to the exercise of a right, must be interpreted in a restrictive way. (18) Ultimately, it would amount to accepting that the Commission could, in practice, refuse access to any information in its possession on the ground that the information has been obtained in the exercise of its duties as guardian of the Treaties, in other words, in the exercise of any of its powers and not only, as seems more correct, in the exercise of its powers of control which are implemented through specific proceedings, such as infringement proceedings or competition proceedings.
46. Therefore, I believe that the General Court has created a general category, namely ‘investigations prior to any proceedings’ which indiscriminately includes any information-gathering activity carried out by the Commission. To my mind, that is not consistent with the proper understanding of the third indent of Article 4(2) of Regulation No 1049/2001, in which the reference to ‘the purpose of inspections, investigations and audits’ has a concrete and specific scope, since it is linked to the specific procedures provided for in the Treaties, and not a scope that is so general and abstract as to refer to any activity carried out by the Commission when it discharges its obligation to ensure the correct application of the Treaties and to oversee the application of EU law.
47. In a legal context that has some bearing on the matter of concern to us here, the Court of Justice has adopted an approach that may be useful in determining the extent to which an investigation conducted prior to the initiation of proceedings may subsequently be included or incorporated in such proceedings. In fact, in the Mecklenburg
case (19) the issue arose as to whether the concept of ‘preliminary investigation proceedings’ in the third indent of Article 3(2) of Directive 90/313/EEC on the freedom of access to information on the environment, (20) — whereby Member States may provide for a request for such information to be refused where it affects ‘matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings’ — was to be interpreted as including the proceedings of an administrative authority which are restricted to preparing the way for an administrative measure.
48. On that occasion the Court of Justice held that ‘the term “preliminary investigation proceedings” … must be interpreted as including an administrative procedure … which merely prepares the way for an administrative measure, only if it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure’. (21)
49. In that spirit, it is my view that, in the case at issue here, the only studies that could fall within the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 were (i) studies which, at the time the application was made for access to them, had been included in infringement proceedings already under way and (ii) studies which, although not related to a case in respect of which proceeding had been initiated, were to be included in proceedings whose initiation was imminent.
50. Accordingly, it is my view that ClientEarth is right to complain of an infringement of the third indent of Article 4(2) Regulation No 1049/2001, inasmuch as studies that were not followed immediately by infringement proceedings were wrongly included within the concept of ‘investigation’.
51. Therefore, the appeal should be allowed on this point.
52. If the first part of the first ground of appeal is allowed, it will be necessary to determine exactly the studies which — on account of their connection to infringement proceedings that, at the time of the application for disclosure, had already been initiated or were soon to be initiated — should be regarded as being an integral part of such proceedings. The need for that determination means, as is explained in point 76 of this Opinion, that the case must be referred back to the General Court.
53. Nevertheless, once the General Court has indicated the studies that are related to infringement proceedings which are under way or whose initiation is imminent, it will be necessary to examine whether disclosure of those studies can be refused under the general presumption that such refusal is necessary to protect the purpose of the Commission’s investigations, that is to say, whether the exception in the third indent of Article 4(2) of Regulation No 1049/2001 applies.
2. Second part of the first ground of appeal: Protection of investigations and a general presumption in favour of refusal of disclosure of documents
54. This is the issue raised in the second part of the first ground of appeal, which disputes that the general presumption of confidentiality invoked by the Commission in order to refuse access to the requested documents can apply to the present case.
55. The case-law of the Court of Justice has accepted that the institution to which a request for disclosure is made may invoke a general presumption of confidentiality in relation to a particular category of documents where similar general considerations are likely to apply to the applications for disclosure. In particular, the Court of Justice has recognised a general presumption to that effect in relation to documents regarding procedures for reviewing State aid, (22) competition control proceedings, (23) infringement proceedings (24) and, finally, court proceedings. (25)
56. In the present case it is doubtful, however, whether the studies at issue are capable, as a whole and indiscriminately, of undermining the purpose of protecting the Commission’s investigations in the way in which the Commission has maintained throughout the procedure.
57. It should be borne in mind that, in every case, the studies at issue are in fact studies carried out on behalf of the Commission by a private consulting firm concerning the degree of compliance of several Member States with the obligation to transpose certain directives. (26) According to the judgment under appeal, ‘those... studies were ordered by the Commission in the context of the obligation imposed on it, under Article 17 TEU, to oversee, under the control of the Court of Justice, the application of EU law’. (27) That being so, there seems to be little doubt that, by virtue of both their subject-matter (examination of the transposition of a number of directives) and their author (an external consulting firm), the studies in question could not, in any respect, contain ‘sensitive’ information compromising the Commission.
58. I accept that it is possible that these studies did not contain only information that was accessible to any individual because, as explained by the Commission at the hearing, their authors could use the Commission’s name to gain access to the information necessary to prepare the studies in question, which probably allowed them access to sources not available to individuals. I also accept that the authors were acting on behalf of the Commission when gathering the information on the basis of which they prepared the studies. But even so, what must be decisive here, however, is that those studies, including the assessments they contained concerning the degree of compliance of Member States and the conclusions which might form the basis for a specific proposal for initiating infringement proceedings, were in any case attributable to their authors and not to the Commission as such.
59. In so far as this is the case, it is my view that it is not possible to accept the argument put forward by the Commission that disclosure of the studies might have undermined the climate of mutual trust between the Commission and the Member States: the contents of those studies did not express the Commission’s point of view and the Commission could always rely on the fact that the studies in question did not reflect its opinion on the compliance of national legislation with EU law, and stress that the studies were merely informative and were tools intended, precisely, to enable it to form its own opinion.
60. In that regard, it should be recalled that, although, as I have said, the authors of the studies could gain access to the information used by invoking the Commission’s name, ultimately, that information still related to the extent to which Member States had fulfilled their obligation to transpose certain directives on the environment, that is to say, to an issue which to a great extent and, by definition, must be in the public domain and, as such, accessible to any individual. The fact that in a European Union, which at the time consisted of 27 Member States, examination of all the laws concerned would entail significant technical difficulty, if only on linguistic grounds, is a separate matter: hence the interest that the studies aroused in the appellant in its capacity as an organisation concerned with environmental protection and, consequently, the paramount importance to be accorded in this context to the principle of transparency and, with it, the right of access to information and documents, which is recognised by Article 42 of the Charter of Fundamental Rights of the European Union.
61. In any event, since the studies of interest to the appellant were strictly those prepared by the external consulting firm and did not contain any additions or assessments by the Commission, they would not be attributed to the Commission itself, but rather to a third party: pursuant to Article 4(4) of Regulation No 1049/2001, ‘[a]s regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed’.
62. I therefore take the view that the second part of the first ground of appeal should also be allowed. In any event, it is for the General Court to examine whether each of the studies it considers to be an integral part of infringement proceedings contains information, opinions or assessments which may in some way be detrimental to the Commission, to the point of undermining the protection of its investigations: the general presumption that such detriment could occur cannot therefore be relied on.
B – Second ground of appeal
63. Allowing the first ground of appeal would not preclude, as a matter of principle, examination of the second ground of appeal, whereby the appellant maintains that applying Article 4(4)(c) of the Aarhus Convention to the case would necessarily require the concept of ‘investigations’ to be restricted to those of a criminal or disciplinary nature.
64. The second ground of appeal thus prompts consideration of the difference between the third indent of Article 4(2) of Regulation No 1049/2001, which refers generally to ‘investigations’, and Article 4(4)(c) of the Aarhus Convention, which allows refusal of a request for information which would adversely affect ‘the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature’.
65. The question is, in short, whether the rule set out in the Aarhus Convention must, in some circumstances, prevail over the rule set out in Regulation No 1049/2001.
66. With the second ground of appeal so expressed, the answer to the above question cannot be different from that given by the Court of Justice in its recent judgment of 13 January 2015, (28) in which, albeit in the context of a different provision of the Aarhus Convention (Article 9(3) on access to administrative or judicial procedures), the Court (Grand Chamber) confirmed the established case-law concerning the fact that rules of international law may be relied on as a criterion for assessing the validity of EU secondary legislation.
67. The reasons that led the Grand Chamber to reject the possibility of relying on Article 9(3) of the Aarhus Convention also lead to rejection of the possibility of relying on Article 4(4)(c) of that convention, since the latter provision also fails to meet the conditions set out in paragraph 54 of that judgment in so far as they require that its content be unconditional and sufficiently precise.
68. Indeed, Article 4(4)(c) does not contain any unconditional and sufficiently precise obligation capable of directly affecting the legal position of individuals. In accordance with that provision: ‘[a] request for environmental information may be refused if the disclosure would adversely affect: … (c) [t]he course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;’. Reference to ‘the ability … to conduct an enquiry of a … disciplinary nature’ is sufficiently general and imprecise to encompass any monitoring by public authorities of the legality of the conduct of the persons or entities that are bound by the rules which those authorities have to enforce.
69. In this regard, it can be said that verifying whether the Member States are discharging their obligation to transpose certain directives, and, if necessary, initiating the appropriate infringement proceedings, naturally forms part of the Commission’s ‘ability’ ‘to conduct an enquiry’ which, in this respect, may be classified as ‘disciplinary’ in the broad sense of the word, since the Commission is thus in a position to ensure compliance with EU law by exercising the power, conferred on it to that end by the Treaties, to impose penalties. Only if it were absolutely clear from Article 4(4)(c) of the Aarhus Convention that the reference to ‘the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature’ relates solely to proceedings involving individuals, could it be concluded that proceedings concerned with the conduct of the Member States do not fall under it. As the European Union is a union of States, it follows from its unique nature that proceedings for monitoring the legality of the conduct of its main actors — the Member States — must be interpreted, under the Aarhus Convention, as ‘disciplinary’ proceedings. Therefore, the interpretation of Article 4(4)(c) of the Aarhus Convention which ClientEarth proposes would require a degree of specificity, without which Article 4(4)(c) cannot directly affect its particular legal situation.
C – Third ground of appeal
70. By the last ground of appeal, which is clearly a subsidiary plea, ClientEarth raises the issue of the nature of the public interest capable of justifying, ultimately, the disclosure of a document even where it undermines legal interests protected by one of the exceptions provided for in Regulation No 1049/2001. In its submission, that overriding legal interest does not have to be distinct from the principles which underlie the principle of transparency; the General Court, in failing to take that approach, reversed the burden of proof to the detriment of ClientEarth.
71. It is stated in paragraph 107 of the judgment under appeal that ‘it follows from the case-law that the overriding public interest, referred to in Article 4(2) in fine
and the first subparagraph of Article 4(3) in fine
of Regulation No 1049/2001, which is capable of justifying the disclosure of a document which undermines or seriously undermines the legal interests protected by the exceptions provided for in those provisions must, as a rule, be distinct from the abovementioned principles which underlie that regulation ( API
v Commission, paragraph 52 above, paragraph 97)’.
72. It is true that the Court of Justice has clearly stated that ‘the overriding public interest capable of justifying the disclosure of a document must not necessarily be distinct from the principles which underlie Regulation No 1049/2001’. (29) Nevertheless, under the case-law of the Court of Justice such general considerations do not suffice to establish that the principle of transparency ‘is in some sense especially pressing and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the documents in question’. (30) Thus, contrary to the appellant’s contention, it cannot be maintained that the mere invocation of the principle of transparency is sufficient to justify the disclosure of a document which undermines the legal interests protected by the exceptions in question.
73. In any event, allowing the first ground of appeal and referring the case back to the General Court should, as regards specific studies which may be covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, permit the General Court to ascertain whether ClientEarth has put forward sufficient reasons to establish that the overriding public interest underlying the principle of transparency must prevail over the objective of protecting the Commission’s investigations.
VII – The determination of the dispute by the General Court
74. Under Article 61 of the Statute of the Court of Justice, ‘if the appeal is well founded, the Court of Justice shall quash the decision of the General Court’, but ‘may itself give final judgment in the matter where the state of the proceedings so permits’.
75. Should the Court of Justice allow, as I propose, the first part of the first ground of appeal, it would not, in my view, be in position to decide on the substance of the case, it thus being necessary to refer it back to the General Court.
76. In order to determine precisely (i) the studies in respect of which the initiation of infringement proceedings was to be taken to have been ruled out and (ii) the studies that related to cases in which there was still a possibility of immediately initiating proceedings, it will be necessary to determine, on a case-by-case basis, whether there was a reasonable likelihood, at the time when access to those studies was requested, of proceedings being initiated, taking into account for that purpose the time that had elapsed since the studies became available to the Commission and the circumstances that might justify the fact that the Commission had not yet decided to initiate proceedings. That implies that the case must be referred back to the General Court for it to decide on this point.
77. If, moreover, the Court of Justice were also to allow the second part of the first ground of appeal, it would also be necessary to refer the case back to the General Court for it to examine, without relying on the general presumption that the purpose of the Commission’s investigations could be undermined, whether each of the studies the General Court considers to be an integral part of infringement proceedings contains information, opinions or assessments which may in some way be detrimental to the Commission, to the point of undermining that purpose.
VIII – Costs
78. In accordance with Article 138(1) of the Rules of Procedure, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, I propose that the Court of Justice order the Commission to pay the costs.
IX – Conclusion
79. In the light of the foregoing considerations, I propose that the Court should:
(1) allow the first ground of appeal;
(2) set aside the judgment in ClientEarth
v Commission
(T‑111/11, EU:T:2013:482);
(3) refer the case back to the General Court for it to decide which of the studies at issue fall within the ‘investigation’ category either because they are included in proceedings that are under way or because they are connected with proceedings which, in all reasonable likelihood, will be initiated within a period of time which is also reasonable. The General Court will have to examine whether each of the studies it considers to be an integral part of infringement proceedings contains information, opinions or assessments which may in some way be detrimental to the Commission, to the point of undermining the protection of its investigations; the general presumption that such detriment could occur cannot therefore be relied on;
(4) order the Commission to pay the costs.
(1) .
(2) Case-law developed through decisions concerning documents related to procedures for reviewing State aid ( Commission
v Technische Glaswerke Ilmenau
(C‑139/07 P, EU:C:2010:376)), to competition control proceedings ( Commission
v Éditions Odile Jacob
(C‑404/10 P, EU:C:2012:393)), to infringement proceedings ( Liga para a Protecção da Natureza (LPN)
v Commission
(C‑514/11 P and C‑605/11 P, EU:C:2013:738)) and to court proceedings ( Sweden
v API and Commission
(C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541)).
(3) Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(4) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).
(5) Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).
(6) ClientEarth
v Commission, T‑111/11, EU:T:2013:482.
(7) C‑514/11 P and C‑605/11 P (EU:C:2013:738).
(8) Judgment under appeal, paragraph 17.
(9) Judgment under appeal, paragraph 49.
(10) Judgment under appeal, paragraph 50.
(11) Judgment under appeal, paragraph 58. Emphasis added.
(12) T‑36/04, EU:T:2007:258.
(13) Judgment under appeal, paragraph 58, in fine .
(14) Judgment under appeal, paragraph 79.
(15) Judgment under appeal, paragraph 80. Emphasis added.
(16) Paragraphs 18 to 22.
(17) The Commission cites in this respect various judgments of the General Court upheld on appeal by the Court of Justice: Bavarian Lager
(T‑309/97, EU:T:1999:257); API
(EU:T:2007:258); Technische Glaswerke Ilmenau
(T‑237/02, EU:T:2007:257); and Odile Jacob
(T‑237/05, EU:T:2006:395). The Court of Justice made a more explicit statement in the Mecklenburg
case (C‑321/96, EU:C:1998:300), paragraph 30.
(18) In particular, as regards access to environmental information, recital 15 of Regulation No 1367/2006 states that grounds for refusal should be interpreted in a restrictive way.
(19) C‑321/96, EU:C:1998:300.
(20) Council Directive of 7 June 1990 (OJ 1990 L 158, p. 56).
(21) Mecklenburg
(C‑321/96, EU:C:1998:300), paragraph 30.
(22) Commission
v Technische Glaswerke Ilmenau
(C‑139/07 P, EU:C:2010:376).
(23) Both in connection with mergers, judgment of 28 June 2012, Commission
v Éditions Odile Jacob
(C‑404/10 P, EU:C:2012:393), and in proceedings relating to concerted practices, judgment of 27 February 2014, Commission
v EnBW
(C‑365/12 P, EU:C:2014:12). Concerning the issue, see Lenaerts, K.: ‘The Interplay between Regulation No 1049/2001 on Access to Documents and the Specific EU Regulations in the Field of Competition Law’, Mundi et Europae civis. Liber Amicorum Jacques Steenbergen,
Larcier, Brussels, 2014, pp. 483-492.
(24) LPN
v Commission
(C‑514/11 P and C‑605/11 P, EU:C:2013:738).
(25) Sweden
v API and Commission
(C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541).
(26) As mentioned in paragraph 49 of the judgment ‘... the studies at issue concern the transposition by 19 Member States of a number of European Union directives relating to protection of the environment’.
(27) Loc. cit .
(28) Council v Vereniging Milieudefensie
(C‑401/12 P to C‑403/12 P, EU:C:2015:4).
(29) LPN
v Commission
(C‑514/11 P and C‑605/11 P, EU:C:2013:738), paragraph 92, with reference to the judgment in Sweden and Turco
v Council
(C‑39/05 P and C‑52/95 P, EU:C:2008:374), paragraphs 74 and 75.
(30) LPN
v Commission
(C‑514/11 P and C‑605/11 P, EU:C:2013:738), paragraph 93.