Keywords

Summary



Keywords

1. 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)

2. European Union – Institutions – Right of public access to documents – Request for access to environmental information – Application of Regulation No 1367/2006 as lex specialis in relation to Regulation No 1049/2001 – Effect

(Art. 255 EC; European Parliament and Council Regulations No 1049/2001, Art. 4, and No 1367/2006, recitals 8 and 15, Arts 3 and 6(1))

3. European Union – Institutions – Right of public access to documents – Request for access to environmental information – Legal presumption of an overriding public interest requiring disclosure of information concerning emissions into the environment – Scope

(European Parliament and Council Regulations No 1049/2001, Art. 4(2), and No 1367/2006, Art. 6(1))

4. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Requirement that the institution should examine the documents specifically and individually – Exclusion of the obligation – Conditions

(European Parliament and Council Regulation No 1049/2001, Art. 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 purpose of inspections, investigations and audits

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

Summary

1. In the context of an application for annulment under Article 230 EC, the legality of the contested measure falls to be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted.

However, where at the time of the adoption of the contested decision, an infringement procedure under Article 226 EC is in progress, the Commission is, in principle, entitled to invoke the exception relating to the protection of the purpose of investigations laid down by Article 4(2), third indent, of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

When it refuses access to the documents concerned on the basis of that exception, the Commission must nevertheless, firstly, satisfy its obligation to examine whether those documents were in fact covered, in their entirety, by that exception and, secondly, correctly balance the possible overriding public interests in their disclosure and the interest in the protection of their confidentiality.

The risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Moreover, as is clear from its wording, the aim of that exception is not to protect the investigations as such, but rather their purpose, which, in the context of an infringement procedure, is to induce the Member State concerned to comply with European Union law.

(see paras 100-102, 110)

2. It is apparent from recitals 8 and 15 in the preamble to Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, and, in particular, from the phrase ‘subject to any more specific provisions in this Regulation concerning requests for environmental information’, read in conjunction with Articles 3 and 6 of that regulation, that that regulation constitutes a lex specialis in relation to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, by replacing, amending or clarifying certain of the provisions of the latter regulation where the request for access relates to environmental information or information which relates to emissions into the environment.

As regards the right of access to documents containing such information, the second sentence of recital 15 in the preamble to and the second sentence of Article 6(1) of Regulation No 1367/2006 reaffirm the principle that any exception to an individual right or to a general principle under European Union law, including to the right of access provided for by Article 255 EC, read in conjunction with Regulation No 1049/2001, must be applied and interpreted in a restrictive way. That obligation to interpret the exceptions laid down by Regulation No 1049/2001 strictly is reinforced, on the one hand, by the need for the institution concerned to take account of the public interest in disclosure of such information and by the reference to whether that information relates to emissions into the environment and, on the other hand, by the fact that Regulation No 1049/2001 does not contain any similar details regarding the application of those exceptions in that field.

(see paras 105,107)

3. Article 6(1) of Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies does not call in question the principle laid down in the last phrase of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, but merely modifies and clarifies the conditions under which the institution concerned will examine whether there is an overriding public interest in disclosure in the context of a request for access to documents containing environmental information. Thus, that provision lays down a presumption of law that an overriding public interest in disclosure exists where the requested information relates to emissions into the environment, except where that information concerns an investigation, in particular one concerning possible infringements of European Union law.

It follows that even though that presumption of law does not apply to documents relating to investigations initiated in the context of infringement procedures, that provision does not thereby relieve the Commission of its obligation to take account, in each individual case, of any overriding public interests in disclosure, in particular those relating to environmental information in a wider sense than that of emissions into the environment, and to balance the overriding public interests in the disclosure of such information against the interest in the protection of their confidentiality.

However, while it is true that Article 6(1) of Regulation No 1367/2006 may result in wider access to environmental information, that finding has no bearing on the question whether the institution concerned is or is not required to carry out a specific and individual examination of the documents or information requested. Consequently, the conditions under which that institution is authorised, exceptionally, to dispense with such a specific and individual examination, apply mutatis mutandis where the documents concerned obviously fall within a single category capable of being covered by one of the exceptions laid down in Article 4 of Regulation No 1049/2001. Indeed, even though it follows from the first sentence of Article 6(1) of Regulation No 1367/2006 that the presumption of the existence of an overriding public interest in the disclosure of information on emissions into the environment does not apply in the context of a current infringement procedure, all the documents arising from such an infringement procedure are capable of being protected as a category.

(see paras 108, 117)

4. There are a number of exceptions to the Commission’s obligation to examine specifically and individually the documents to which access has been requested.

Since the purpose of the concrete, individual examination which the institution must in principle undertake in response to a request for access made under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is to enable the institution in question to assess, on the one hand, the extent to which an exception to the right of access is applicable and, on the other, the possibility of partial access, such an examination may not be necessary where, due to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted. Such could be the case, inter alia, if certain documents were either, first, manifestly covered in their entirety by an exception to the right of access or, conversely, manifestly accessible in their entirety, or, finally, had already been the subject of a concrete, individual assessment by the Commission in similar circumstances. In addition, it is in principle open to the institution concerned to base its decisions in that regard, including in the statement of reasons for the decision refusing access, on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature, provided that it establishes in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose.

(see paras 113-115)

5. As regards the review which the Commission is required to carry out in the context of an infringement procedure initiated under Article 226 EC, that review clearly falls within the scope of an administrative function, in the context of which it has wide discretion and enters into a bilateral dialogue with the Member State concerned.

The procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the context of an infringement procedure initiated under Article 226 EC from that which they have, for example, in the context of a procedure for the application of the Community competition rules, such as that laid down by Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, and by Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC, during which complainants have specific procedural rights, observance of which is subject to genuine judicial review in an action against a decision rejecting their complaint. By contrast, complainants within the meaning of Communication 2002/C 244/03, on the Commission’s relations with the complainant in respect of infringements of Community law, are not able to bring an action before the Courts of the European Union against any decision to take no further action on their complaint and do not enjoy any procedural rights, comparable to those which they may have in the context of a procedure initiated under the abovementioned regulations, enabling them to require the Commission to inform them and hear their views.

Consequently, in the absence of any right for a complainant, in the context of such a procedure, to consult the documents in the Commission’s administrative file, it must be acknowledged that, by analogy with the situation of interested parties in the context of the procedure for the review of State aid, there is a general presumption that disclosure of the documents in the administrative file would, in principle, undermine protection of the purpose of the investigation. It is therefore sufficient for the Commission to establish whether that general presumption should apply to all the documents concerned, without its necessarily being required to undertake a prior specific and individual examination of each of those documents. However, where, at the time of the adoption of the decision refusing access to documents, an infringement procedure is in progress, the Commission is necessarily required to start from the principle that that general presumption applies to all the documents concerned.

That presumption does not however exclude the right of interested parties to demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.

(see paras 126-128)