Keywords

Summary



Keywords

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

(European Parliament and Council Regulation No 1049/2001, Arts 4(5), and 9(3))

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

(European Parliament and Council Regulation No 1049/2001, Art. 4(5))

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

(Art. 255(1) and (2); European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))

4. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents

(Art. 10 EC; European Parliament and Council Regulation No 1049/2001, Arts 4(1) to (3) and (5), 7 and 8)

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

(European Parliament and Council Regulation No 1049/2001, Arts 4(1) to (3), 7 and 8)

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

(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))

Summary

1. Where a Member State has made use of the option given to it by Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents to request that a specific document originating from that State should not be disclosed without its prior agreement, disclosure of that document by the institution requires the prior agreement of that Member State to be obtained. Since an ‘agreement’ is legally different from a mere ‘opinion’, the very wording of Article 4(5) of Regulation No 1049/2001 precludes an interpretation to the effect that the provision merely confers on a Member State making use of the possibility given by that provision the right to be consulted by the institution before the institution decides, possibly despite the opposition of the Member State in question, to allow access to the document concerned. The fact that Article 4(5) of Regulation No 1049/2001 uses the words ‘may request’ simply emphasises that that provision gives the Member State an option, and only the actual exercise of that option in a particular case has the consequence of making the prior agreement of the Member State a necessary condition of the future disclosure of the document in question.

(see paras 45, 47, 50)

2. Far from referring only to documents of which the Member States are the ‘authors’ or which have been ‘drawn up’ by them, Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents potentially concerns every document ‘originating’ from a Member State, whoever their author may be, that a Member State transmits to an institution. Thus the only relevant criterion is the origin of the document and the handing over by the Member State concerned of a document previously in its possession.

(see para. 61)

3. It is clear from recital 10 in the preamble to, and Article 2(3) of, Regulation No 1049/2001 that all documents held by the institutions are within the scope of the regulation, including those originating from the Member States, so that access to such documents is in principle governed by the provisions of the regulation, including those which lay down substantive exceptions to the right of access. Thus the exceptions set out in Article 4(1) to (3) of the regulation must be interpreted and applied strictly.

Those exceptions delimit the exercise of the power conferred by Article 4(5) on the Member State concerned, the latter being given in that respect nothing more than a power to take part in the Community decision. Seen in that way, the prior agreement of the Member State referred to in Article 4(5) resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present. It follows that Article 4(5) of Regulation No 1049/2001 cannot be interpreted as conferring on the Member State a general and unconditional right of veto, so that it could in a discretionary manner oppose the disclosure of documents originating from it and held by an institution, with the effect that access to such documents would cease to be governed by the provisions of that regulation and would depend only on the provisions of national law.

(see paras 66-67, 75-76)

4. Since the implementation of Article 4(1) to (3) of Regulation No 1049/2001 is entrusted jointly to the Community institution and the Member State which has made use of the possibility granted by Article 4(5) of that regulation, and such implementation consequently depends on the dialogue to be carried on between them, they are obliged in accordance with the duty of loyal cooperation set out in Article 10 EC to act and cooperate in such a way that those rules are effectively applied.

It follows, first, that an institution which receives a request for access to a document originating from a Member State and that Member State must, once that request has been notified by the institution to the Member State, commence without delay a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, while paying attention in particular to the need to enable the institution to adopt a position within the time-limits within which Articles 7 and 8 of the regulation require it to decide on the request for access.

(see paras 85-86)

5. A Member State which, at the conclusion of the dialogue with a Community institution concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, objects to disclosure of the document in question is obliged to state reasons for that objection with reference to those exceptions.

The institution cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where, despite an express request by the institution to the Member State to that effect, the State still fails to provide the institution with such reasons, the institution must, if for its part it considers that none of those exceptions applies, give access to the document that has been asked for.

Finally, and in accordance with Articles 7 and 8 of the regulation, the institution is itself obliged to give reasons for a decision to refuse a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document asked for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access in Article 4(1) to (3) of the regulation applies. That information will allow the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review.

(see paras 87-89)

6. Article 4(5) of Regulation No 1049/2001 does not aim to establish a division between two powers, one national and the other of the Community, with different purposes, but creates a decision-making procedure the sole object of which is to determine whether access to a document should be refused under one of the substantive exceptions listed in Article 4(1) to (3) of the regulation, a decision-making procedure in which both the Community institution and the Member State concerned play a part.

In such a case it is within the jurisdiction of the Community judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal was validly based on those exceptions, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the relevant Member State. From the point of view of the person concerned, the Member State’s intervention does not affect the Community nature of the decision that is subsequently addressed to him by the institution in reply to the request he has made for access to a document in its possession.

(see paras 93-94)