Keywords

Summary



Keywords

1. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Obligation on the institution to carry out a specific and individual examination of the documents – Scope

(European Parliament and Council Regulation No 1049/2001, Arts 4, 9(4) and 11(2))

2. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the purpose of inspections, investigations and audits

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

3. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the purpose of inspections, investigations and audits – Protection of the commercial interests of a natural or legal person

(Art. 287 EC; Regulation No 1049/2001 of the European Parliament and of the Council, Arts 2(3) and 4(2), first and third indents; Council Regulations No 4064/89, Art. 17, and No 139/2004, Art. 17)

4. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from third parties

(European Parliament and Council Regulation No 1049/2001, Art. 4(1), (2) and (4))

5. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)

6. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of legal advice

(European Parliament and Council Regulation No 1049/2001, recital 6 and Art. 4(2), second indent)

7. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Obligation on the institution to examine the documents specifically and individually – Examination proving to be particularly heavy and inappropriate – Derogation from the obligation to examine

(European Parliament and Council Regulation No 1049/2001, Art. 4(6))

8. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Overriding public interest justifying disclosure of documents

(Art. 255 EC; European Parliament and Council Regulation No 1049/2001, Arts 2(1) and 4(3), second subpara.)

Summary

1. The obligation on an institution to undertake a specific, individual assessment of the content of the documents covered by an application for access is an approach to be adopted, as a matter of principle, with regard to all the exceptions mentioned in Article 4(1) to (3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, whatever the field to which the documents sought relate.

However, the application of that approach as a matter of principle does not mean that such an examination is required in all circumstances. Since the purpose of the specific, individual examination which the institution must in principle undertake in response to a request for access made under Regulation No 1049/2001 is to enable that institution to assess, first, the extent to which an exception to the right of access is applicable and, secondly, the possibility of partial access, 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.

Moreover, the general nature of the statement of reasons on which a refusal to grant access is based, as well as its brevity or its formulaic character, can be indicative of a failure to carry out a specific examination only in the case where it is objectively possible to give the reasons justifying the refusal of access to each document without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose. The need for the institutions to abstain from referring to matters which would indirectly undermine the interests which the exceptions are specifically designed to protect is emphasised, in particular, by Article 9(4) and Article 11(2) of Regulation No 1049/2001.

Lastly, a single justification may be applied to documents belonging to the same category, which will be the case, in particular, where they contain the same type of information. It is then a matter for the General Court to ascertain whether the exception relied upon covers manifestly and in their entirety the documents falling within that category.

(see paras 44-47)

2. The third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents must be interpreted in such a way that that provision, the aim of which is to protect the purpose of inspections, investigations and audits, applies only if disclosure of the documents in question could endanger the completion of those activities.

It is true that the various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought has been completed.

However, acceptance that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided would make access to such documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities. Such a solution would be contrary to the objective of ensuring public access to the documents of the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.

(see paras 72-75)

3. Under Article 2(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the provisions on public access to Commission documents apply to all documents held by that institution, that is to say, all documents drawn up or received by it and in its possession in all areas of activity of the European Union. It cannot therefore be accepted that, in the field of concentrations, correspondence between the Commission and interested parties should be regarded as being obviously covered by the exception relating to the protection of the purpose of investigations or by that relating to the protection of commercial interests. While those exceptions can, in appropriate cases, apply to certain documents drawn up by or sent to the Commission, that is not necessarily the case for all documents or for all parts of those documents. The Commission is, at the very least, under a duty to satisfy itself that the exception does apply, by means of a proper, specific examination of each document, as is required by the first indent of Article 4(2) of Regulation No 1049/2001.

In so far as the public has a right of access to documents containing certain information, that information cannot be considered to be of the kind covered by the duty of professional secrecy or the protection of business secrets. Neither Article 287 EC nor Article 17 of Regulations No 4064/89 and No 139/2004 on the control of concentrations between undertakings can prevent the disclosure of a document that is not covered by one of the exceptions laid down in Regulation No 1049/2001.

(see paras 86, 90, 94, 123-124)

4. In the case of third-party documents, Article 4(4) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents requires the institution to consult the third party concerned with a view to assessing whether an exception under Article 4(1) or (2) of that regulation is applicable, unless it is clear whether or not the document should be disclosed. It follows that the institutions are under no obligation to consult the third party concerned if it is clear whether the document should or should not be disclosed. In all other cases, the institutions must consult the relevant third party. Accordingly, consultation of the third party concerned is, as a general rule, a precondition for determining whether the exceptions to the right of access provided for in Article 4(1) and (2) of Regulation No 1049/2001 are applicable in the case of third-party documents. Failure to consult the authors of third-party documents is thus inconsistent with Regulation No 1049/2001 unless one of the exceptions laid down in that regulation clearly applies to the documents in question.

(see paras 126-127)

5. In order to apply the exception based on the protection of the decision-making process, set out in Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it must be shown that access to the documents requested is likely specifically and actually to undermine the Commission’s decision-making process and that that risk is reasonably foreseeable and not purely hypothetical.

Moreover, in order to come within the scope of that exception, the undermining of the decision-making process must be serious. It will be so, inter alia, where the disclosure of the documents sought has a significant effect on the decision-making process. How serious it is will depend on all the circumstances of the case, in particular the negative effects on the decision-making process to which the institution refers in connection with disclosure of the documents concerned. Justifications made in a general and abstract fashion, without being supported by any detailed argument based on the content of the documents in question, cannot suffice to justify refusal of access to the documents requested without imperilling the principle of strict interpretation of the exceptions laid down in Article 4 of Regulation No 1049/2001, and in particular that laid down in Article 4(3) of that regulation.

(see paras 140-141, 143)

6. The exception relating to legal advice, set out in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, must be construed as aiming to protect the Commission’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical.

In this regard, the public interest in obtaining access to a document pursuant to the obligation of transparency, which seeks to ensure greater participation by citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system, is not the same in the case where the document relates to an administrative procedure intended to apply rules governing the control of concentrations or competition law in general as it is in the case where the document relates to a procedure in which the institution in question is acting in its legislative capacity and in that where wider access to documents should be authorised in accordance with recital 6 in the preamble to Regulation No 1049/2001.

(see paras 156, 161)

7. As the right of access to documents held by the institutions constitutes an approach to be adopted in principle, it is solely in exceptional cases, and only where the administrative burden entailed by a specific, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from the obligation to examine the documents may be permissible.

In addition, it is with the institution relying on an exception related to the unreasonableness of the task entailed by the request for access to documents under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the burden of proof as to the scale of that task rests.

Where the institution has adduced proof of the unreasonableness of the administrative burden entailed by a specific, individual examination of the documents referred to in the request, it is obliged to try to consult with the applicant in order, first, to ascertain or to ask him to specify his interest in obtaining the documents in question and, secondly, to consider specifically whether and how it may adopt a measure less onerous than a specific, individual examination of the documents. The institution nevertheless remains obliged, against that background, to give preference to the option which, while not itself constituting a task which exceeds the limits of what may reasonably be required, remains the most favourable to the applicant’s right of access.

It follows that the institution may avoid carrying out a specific, individual examination only after it has genuinely investigated all other conceivable options and explained in detail in its decision the reasons why those various options also involve an unreasonable amount of work.

A Commission decision which entirely refuses an applicant even partial access could be lawful only if the Commission had explained in advance, and in specific terms, the reasons why any alternative solutions to a specific, individual examination of each of the documents sought would also involve an unreasonable amount of work.

(see paras 170-174)

8. In view of the general principle of access to documents laid down by Article 255 EC and recitals 1 and 2 in the preamble to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the overriding public interest justifying disclosure must be objective and general in nature and must not be indistinguishable from individual or private interests, such as those relating to the pursuit of an action brought against the institutions, since such individual or private interests do not constitute an element which is relevant to the weighing-up of interests provided for by the second subparagraph of Article 4(3) of that regulation.

Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to the documents of the institutions comprise any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. It follows that the purpose of that regulation is to guarantee access for everyone to public documents and not merely access for the requesting party to documents which concern it. Consequently, the individual interest which a party may invoke when requesting access to documents of personal concern to it cannot generally be decisive either in the assessment of the existence of an overriding public interest or in the weighing-up of interests under the second subparagraph of Article 4(3) of Regulation No 1049/2001.

(see paras 191-192)