Keywords

Summary



Keywords

1. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4)

2. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

3. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

4. Procedure – Disclosure by parties of their own written submissions

(Statute of the Court of Justice, Arts 20, second para., and 53; Rules of Procedure of the Court, Arts 16(5) and 56(2); Rules of Procedure of the Court of First Instance, Arts 24(5) and 57; Instructions to the Registrar of the Court of First Instance, Art. 5(3))

5. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

6. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

7. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(Art. 226 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(2))

Summary

1. The examination required for the purpose of processing a request for access to documents under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of that regulation, whether there was no overriding public interest in disclosure. Further, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons given for the decision. That examination must, moreover, be carried out in respect of each document covered by the request.

A concrete, individual examination is in any event necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess the possibility of granting the applicant partial access under Article 4(6) of Regulation No 1049/2001.

The obligation for an institution to undertake a concrete, individual assessment of the content of the documents covered in the application for access is an approach to be adopted as a matter of principle, as regards all the exceptions mentioned in paragraphs 1 to 3 of Article 4 of Regulation No 1049/2001, whatever the field to which those documents relate.

However, the application of that approach as a matter of principle does not mean that such an examination is required in all circumstances. Such an examination may not be necessary where, owing to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted. Such a situation could arise, for example, if certain documents were (i) manifestly covered in their entirety by an exception to the right of access or, conversely, (ii) manifestly accessible in their entirety, or, finally, (iii) had already been the subject of a concrete, individual assessment by the Commission in similar circumstances.

(see paras 54-58)

2. As regards the exception to the general principle of access to documents relating to the protection of court proceedings, provided for in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it should be recalled, first, that it follows from the broad definition of the notion of document, as set out in Article 3(a) of that regulation, and from the wording and the very existence of the exception relating to the protection of court proceedings, that the Community legislature did not intend to exclude the institutions’ litigious activities from the public’s rights of access, but that it provided, in that regard, that the institutions are to refuse to disclose documents relating to court proceedings where such disclosure would undermine the proceedings to which those documents relate.

Second, the Commission’s pleadings before the Community judicature fall within the scope of the exception relating to the protection of court proceedings, in that they relate to a protected interest.

Third, the fact that the scope of that exception covers all documents drawn up solely for the purposes of specific court proceedings, and in particular pleadings lodged by the institutions, cannot, in itself, justify application of the exception invoked. The exception based on protection of the public interest in the context of court proceedings cannot be interpreted as obliging the Commission to refuse access to all documents which it has drafted solely for the purposes of such proceedings.

Fourth, the purpose of the exception for the protection of court proceedings is primarily to ensure observance of the right of every person to a fair hearing by an independent tribunal, which constitutes a fundamental right under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) and which forms an integral part of the general principles of Community law which the Community judicature enforces, drawing inspiration from the constitutional principles common to the Member States and from the guidelines supplied, in particular, by the ECHR, and to ensure the proper course of justice. That exception therefore covers not only the interests of the parties in the context of court proceedings, but more generally the proper conduct of those proceedings.

(see paras 59-61, 63)

3. In the application of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, in principle, it is on account of the nature of the information contained in the documents to which access is sought that their disclosure may undermine a protected interest. However, given the specific nature of the interests that the exception for the protection of court proceedings seeks to protect, namely to ensure observance of the right of every person to a fair hearing by an independent tribunal and the need to ensure the proper course of justice, and since the documents to which access has been requested are the pleadings submitted by the Commission in pending cases to which it is a party, it cannot be ruled out that non‑disclosure may be justified for a certain length of time for reasons independent of the content of each document sought, provided that those reasons justify the need to protect the documents in question in their entirety.

In that context, like the other parties to the proceedings, the Commission must be able to present and debate its position free from all external influences, especially since the position which it defends is in principle designed to ensure the proper application of Community law. Because of the nature of the interests that the exception for the protection of court proceedings seeks to protect, the fulfilment of such an objective requires that the Commission’s pleadings not be disclosed before it has had an opportunity to debate them before the court at the hearing and that the Commission therefore be entitled to exclude public access to them, because of the possible pressure on its agents to which a public debate triggered by their disclosure could give rise, and it is not necessary, for this purpose, that it carry out a concrete assessment of their content.

Thus, since the proceedings to which the pleadings to which access has been requested relate have not yet reached the hearing stage, the refusal to disclose those pleadings must be considered to cover all aspects of the information contained therein. On the other hand, after the hearing has been held, the Commission is under an obligation to carry out a concrete assessment of each document requested in order to ascertain, having regard to the specific content of that document, whether it may be disclosed or whether its disclosure would undermine the court proceedings to which it relates.

(see paras 63, 73-75, 81-82)

4. The parties’ pleadings are in principle confidential as regards their treatment by the Community judicature. The second paragraph of Article 20 of the Statute of the Court of Justice, which is also applicable to the Court of First Instance by virtue of Article 53 of the Statute, requires only that the pleadings be communicated to the parties and to the institutions of the Communities whose decisions are being disputed. In addition, the second subparagraph of Article 16(5) of the Rules of Procedure of the Court of Justice and the second subparagraph of Article 24(5) of the Rules of Procedure of the Court of First Instance provide with respect only to the parties to a case that copies of the pleadings may be obtained, and the third subparagraph of Article 5(3) of the Instructions to the Registrar of the Court of First Instance makes access by third parties to procedural documents subject to the existence of a legitimate interest which must be properly justified.

Those provisions do not, however, prohibit parties from disclosing their own pleadings. The principle is that parties are free to disclose their own written submissions, apart from exceptional cases where disclosure of a document might adversely affect the proper administration of justice.

Nor do those provisions require the institutions to follow, as regards the application of the rules concerning access to documents, the approach of the court before which the case to which the pleadings requested relate is pending. It cannot therefore be accepted, in the absence of specific provisions laid down to that effect, that the scope of application of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents may be restricted on the ground that those provisions of the Rules of Procedure do not govern access of third parties and that they are applicable as a lex specialis .

The only procedural provisions which prohibit the parties from disclosure are Article 56(2) of the Rules of Procedure of the Court of Justice and Article 57 of the Rules of Procedure of the Court of First Instance, which provide that the oral proceedings in cases heard in camera are not to be published.

(see paras 87-90)

5. With respect to the overriding public interest, as referred to in the last line of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which is capable of justifying the disclosure of a document which undermines the protection of court proceedings, it is for the institution concerned to strike a balance between the public interest in disclosure and the interest which is served by a refusal to disclose, in the light, where appropriate, of the arguments put forward by the party requesting access.

That overriding public interest must, as a rule, be distinct from the principles of freedom of the press and transparency which underlie that regulation. However, the fact that a party requesting access does not invoke a distinct public interest does not automatically imply that it is unnecessary to weigh up the interests at stake. The invocation of those same principles may, in the light of the particular circumstances of the case, be so pressing that it overrides the need to protect the documents in question.

However, that is not the case where the documents to which access is requested are the pleadings submitted by the Commission before the Community Courts in pending cases to which it is a party. First, the possibility for members of the public to receive information concerning pending cases is guaranteed by the fact that each action, from the time that it is lodged, is the subject of a notice in the Official Journal, which is also transmitted by internet on the Eur-Lex website and the website of the Court of Justice, stating, in particular, the subject‑matter of the dispute and the forms of order sought in the application, as well as the pleas in law and main arguments put forward. Moreover, the Report for the Hearing, which contains a summary of the parties’ arguments, is made public on the day of the hearing, during which, moreover, the parties’ arguments are debated in public.

Second, the objective pursued through the application of the exception relating to the protection of court proceedings is primarily to prevent all external influences on the proper conduct of those proceedings. However, the interest in the protection of that objective is necessary irrespective of the content of the pleadings requested, since it is an interest the protection of which is necessary for the proper course of justice. Furthermore, such a restriction is not absolute, in that it covers all the pleadings to which access has been refused only until the date of the hearing.

(see paras 94, 97-100)

6. In the application of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the purported need to protect arguments which will, if appropriate, be used in proceedings which are still pending cannot constitute a reason for refusing access to pleadings relating to a case which has already been closed by a judgment of the Court of First Instance, in the absence of any specific statement of reasons showing that their disclosure would undermine the pending court proceedings.

The content of the pleadings of a Community institution concerning a case which has been closed by a judgment of the Court of First Instance has been made public in the form of a summary by means of the Report for the Hearing, debated at a hearing, and also reproduced in the judgment of the Court. The arguments involved are thus already in the public domain, at least in summary form. Moreover, a mere link between two or more cases, whether they have the same parties or the same subject‑matter, cannot in itself justify a refusal of access; otherwise, there would a manifest inversion of the relationship between the principle of free access to the documents of the institutions and the exceptions to that principle, as set out in Regulation No 1049/2001.

(see paras 106, 110, 141)

7. The pleadings submitted by the Commission in proceedings under Article 226 EC, in so far as they refer necessarily to the results of the investigations carried out by the Commission in order to establish the existence of an infringement of Community law, are closely related to the opening of the infringement proceedings in connection with which they were submitted and therefore relate to investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

In that regard, the preservation of the objective of infringement proceedings, namely an amicable settlement of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, may justify refusal of access to documents drawn up in connection with those proceedings under the exception relating to the protection of the purpose of investigations. It cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter’s voluntary compliance with Treaty obligations may continue during the court proceedings and up to the delivery of the judgment. Such a justification applies to the pleadings submitted by the Commission, irrespective of the content of each document requested, where they contain the same type of information and where the infringement to which they relate is contested by the Member State concerned. Those pleadings are manifestly covered in their entirety by the relevant exception to the right of access.

By contrast, the purpose of attaining an amicable settlement is no longer relevant after the delivery of judgments finding the existence of the infringements in respect of which the Commission’s investigations were carried out. Once the Court has found that a Member State has failed to fulfil its obligations under the Treaty that State is required to take the measures to comply with that judgment, and such a result cannot depend on the outcome of the negotiations in progress with the Commission. Moreover, to accept that the various documents relating to investigations are covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided, even in the case where a fresh investigation leading potentially to the bringing of an action on the basis of Article 228(2) EC is necessary, would make access to those documents dependent on uncertain events, namely non‑compliance by the Member State concerned with the judgment of the Court establishing the infringement and the bringing of an action under Article 228(2) EC, which falls within the discretion of the Commission. In any event, they are uncertain and future events, which depend on the speed and diligence of the various authorities concerned. Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.

(see paras 121-123, 126, 135-136, 139-140)