Keywords

Summary



Keywords

1 Commission - Right of public access to Commission documents - Decision 94/90 - Exceptions to the principle of access to documents - Protection of the public interest - Judicial proceedings - Scope

(Commission Decision 94/90)

2 Commission - Right of public access to Commission documents - Decision 94/90 - Exceptions to the principle of access to documents - Rule on authorship - Scope - To be narrowly construed - Refusal of access to documents from the Member States or a non-member country

(Final Act of the Treaty on European Union, Annex 17; Commission Decision 94/90)

3 Acts of the institutions - Statement of reasons - Obligation - Scope - Commission decision refusing access to documents from the Member States or a non-member country

(EC Treaty, Art. 190 (now Art. 253 EC); Commission Decision 94/90)

Summary

1 Although, in accordance with the Code of Conduct adopted by Decision 94/90 on public access to Commission documents, the right of access to documents is subject to two categories of exception, those exceptions must be interpreted strictly, in order not to frustrate the application of the general principle of giving the public the widest possible access to documents held by the Commission.

In respect of the exception based on protection of the public interest, the expression `court proceedings' must be interpreted as meaning that the protection of the public interest precludes disclosure of the content of documents drawn up by the Commission solely for the purposes of specific court proceedings. That encompasses not only the pleadings or other documents lodged, internal documents concerning the investigation of the case before the court, but also correspondence concerning the case between the Directorate-General concerned and the Legal Service or a lawyers' office.

However, the exception based on the protection of public interest (court proceedings) contained in the Code of Conduct cannot enable the Commission to escape from its obligation to disclose documents which have been drawn up in connection with a purely administrative matter, even if the disclosure of such documents in proceedings before the Community judicature may be prejudicial to the Commission. The fact that court proceedings for annulment have been initiated against the decision taken following the administrative procedure is immaterial in that regard.

Decision 94/90 applies generally to requests for access to documents emanating from the public. Whilst an undertaking may have been able, in its capacity as applicant in proceedings before the Court of First Instance, to rely on the provisions of the Rules of Procedure relating to measures of organisation of the procedure or the rights of the defence in order to obtain some of the documents requested in its initial application to the Commission, it none the less retains the option of requesting access to the same documents pursuant to Decision 94/90.

2 Decision 94/90 on public access to Commission documents provides that where a document held by an institution was written by a natural or legal person, a Member State, another Community institution or body or any other national or international body, the application must be sent direct to the author. So long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct adopted by that Decision documents of which it was not the author, the authorship rule may be applied. The fact that Decision 94/90 makes reference to declarations of general policy, such as the Declaration on the right of access to information in Annex 17 to the Final Act of the Treaty on European Union and the conclusions of several European Councils, does not alter that finding, since such declarations do not have the force of a rule of law of a higher order.

In so far as the authorship rule lays down an exception to a general principle, it must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency expressed in Decision 94/90.

In taking the view that it was not required to grant access to certain documents from Member States or the authorities of a non-member country, the Commission has applied the authorship rule correctly and cannot, therefore, have committed an abuse of rights.

3 The obligation to state reasons, laid down in Article 190 of the Treaty (now Article 253 EC), means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review.

A Commission decision refusing access to certain documents from the Member States or the authorities of a non-member country gives sufficient reasons if it refers to the authorship rule set out in the Code of Conduct adopted by Decision 94/90 on public access to Commission documents and informs the applicant that it should request a copy of the documents in question from the Member States and the authorities of the non-member country concerned.