Case T-59/09

Federal Republic of Germany

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to an infringement procedure which has been closed — Documents originating from a Member State — Grant of access — Prior agreement of the Member State’

Summary of the Judgment

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 institution

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 upon the institution and the Member State to cooperate in good faith

Article 255(2) EC confers responsibility on the Council for determining general principles and limits governing the right of access to documents. However, Article 2(3) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents expressly extends the right of access to all documents held by an institution, whether drawn up by that institution or originating from Member States or other third parties. Moreover, the exclusion of a great many documents originating from the Member States from the scope of the right of access under Article 255(1) EC would conflict with the objective of transparency sought by that provision and established by Article 42 of the Charter of Fundamental Rights, subject to certain exceptions which must be narrowly construed. Furthermore, it is apparent from Declaration No 35 on Article 255(1) EC, appended to the Final Act of the Treaty of Amsterdam, that the authors of that treaty did not intend to exclude documents of the Member States from the scope of Article 255(1) EC. The primary law of the European Union offers no justification, therefore, for construing narrowly the right of access to documents originating from Member States. (see paras 29, 41-44)

Under Article 4(5) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents, a Member State may request an institution not to disclose a document originating from that State without its prior agreement. That provision thus gives the Member State the opportunity to participate in the taking of the decision which the institution is required to adopt, and to that end establishes a decision-making process for determining whether the substantive exceptions listed in Article 4(1), (2) and (3) preclude access being given to the document concerned. Article 4(5) of Regulation No 1049/2001 entrusts the implementation of those rules of European Union law jointly to the institution and the Member State which has made use of the possibility under that provision and they are obliged, in accordance with their duty under Article 10 EC to cooperate in good faith, to act and cooperate in such a way that those rules are effectively applied. (see paras 31, 32)

The decision-making process established by Article 4(5) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents requires both the Member State concerned and the institution to focus solely on the substantive exceptions provided for in Article 4(1), (2) and (3) of that regulation. As part of that process, the institution is therefore empowered to make sure that the grounds relied upon as justification for the Member State’s objection to disclosure of the document requested, which must be given in the decision refusing access, adopted in accordance with Article 8(1) of the regulation, are not unfounded. In that connection, review by the institution consists in determining whether, in the light of the circumstances of the case and of the relevant rules of law, the reasons given by the Member State for its objection are capable of justifying prima facie such refusal and, accordingly, whether those reasons make it possible for that institution to assume the responsibility conferred on it under Article 8 of Regulation No 1049/2001. It is not a matter, for the institution, of imposing its view or of substituting its own assessment for that of the Member State concerned, but of preventing the adoption of a decision which it does not consider to be defensible. The institution, as author of the decision granting or refusing access, is responsible for the lawfulness of that decision. In consequence, before refusing access to a document originating from a Member State, it must examine whether the latter has based its objection on the substantive exceptions provided for in Article 4(1), (2) and (3) of Regulation No 1049/2001 and whether it has provided a proper statement of reasons with regard to those exceptions. That examination must be undertaken in the context of the genuine dialogue which is a feature of the decision-making process established under Article 4(5) of Regulation No 1049/2001, the institution being obliged to allow the Member State to set out its reasons more clearly or reassess those reasons so that they may be regarded, prima facie, as defensible. (see paras 51, 53-55)

The concept of ‘international relations’ referred to in the third indent of Article 4(1)(a) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents is a concept peculiar to European Union law and is not therefore dependent on the meaning attributed to it by the national laws of the Member States. Moreover, the founding treaties of the European Union — unlike ordinary international treaties — established a new legal order, with its own institutions, for the benefit of which the States have limited their sovereign rights in ever wider fields and the subjects of which comprise not only Member States but also their nationals. For the purposes of achieving the objectives of the European Union in the fields which it covers, relations between the Member States and the institutions of the European Union come under the constitutional charter which the treaties have established. That is particularly true as regards communication between a Member State and the Commission in the context of an infringement procedure initiated in order to ensure that a Member State fulfils its obligations under the treaties. Accordingly, such communication does not fall within the concept of international relations referred to in Article 4(1), (2) and (3) of Regulation No 1049/2001. (see paras 62-65)