Keywords

Summary



Keywords

Commission - Right of public access to Commission documents - Decision 94/90 - Measure conferring rights on individuals - Exceptions to the principle of access to documents - Interpretation - Scope - Obligation to state reasons

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

Summary

Decision 94/90 on public access to Commission documents, which includes a Code of Conduct on the subject, is capable of conferring on third parties legal rights which the Commission is obliged to respect. By adopting that decision, the Commission has indicated to citizens who wish to gain access to documents which it holds that their requests will be dealt with according to the procedures, conditions and exceptions laid down for that purpose. While, in this regard, the Code lays down exceptions to the general principle that citizens should have access to documents, those exceptions must be construed in a manner which will not render it impossible to attain the objective of transparency which the decision pursues.

More particularly, the Code distinguishes between two categories of exceptions, the first of which, drafted in mandatory terms, provides for refusal of access to any document where disclosure could undermine, in particular, the protection of the public interest, while the second, drafted in discretionary terms, provides for the possibility of refusal in order to protect the institution's interest in the confidentiality of its proceedings. The distinction between these two categories of exceptions is explained by the nature of the interests which they seek to protect, the first protecting the interests of third parties or the general public, while the second relates to the internal deliberations of the institution, in which the institution's interest alone is at stake.

With regard to the first category, the Commission is obliged to refuse access to documents falling under any one of the exceptions contained therein once the relevant circumstances are shown to exist. With regard to the second category, while the Commission enjoys a margin of discretion enabling it, if need be, to refuse a request for access to documents touching upon its deliberations, it must exercise this discretion by striking a genuine balance between, on the one hand, the interest of the citizen in obtaining access to those documents and, on the other, its own interest in protecting the confidentiality of its deliberations.

Documents relating to an investigation into a possible infringement of Community law by a Member State satisfy the conditions which must be met for the Commission to be able to rely on the public interest exception. The Commission is in this regard required to indicate, at the very least by reference to categories of documents, the reasons for which it considers that the documents in question are related to the possible opening of an infringement procedure, indicating to which subject-matter the documents relate and particularly whether they concern the inspections or investigations which a finding of infringement involves. That duty does not, however, mean that the Commission is obliged in all cases to furnish, in respect of each document, `imperative reasons' in order to justify the application of that exception and thereby risk jeopardizing its essential function, which follows from the very nature of the public interest to be protected and the mandatory character of the exception.

In order to meet the requirements to state reasons laid down in Article 190 of the Treaty, a decision rejecting a request for access must, for each category of exceptions, enable the applicant, and consequently the Court, to ascertain whether the Commission has complied with the above obligations.