Case C‑612/13 P

ClientEarth

v

European Commission

‛Appeal — Access to documents of the institutions of the European Union — Regulation (EC) No 1049/2001 — Third indent of Article 4(2) — Environmental information — Aarhus Convention — Article 4(1) and (4) — Exception to right of access — Protection of the purpose of investigations — Studies carried out by an undertaking, at the request of the European Commission, concerning the transposition of directives on the environment — Partial refusal of access’

Summary — Judgment of the Court (Second Chamber), 16 July 2015

Institutions of the European Union — 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 — Overriding public interest justifying the disclosure of documents — Reliance on principles of transparency and democracy — Need to refer to specific considerations related to the particular case

Institutions of the European Union — 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 — Application to studies carried out for the Commission in order to monitor the transposition of certain directives by the Member States and, if necessary, to initiate infringement proceedings — General presumption of the application of the exception to the right of access — Whether permissible — Condition — Study part of a file relating to ongoing infringement proceedings

Institutions of the European Union — 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 — Scope — Studies carried out for the Commission concerning the transposition of certain directives by the Member States — Included

International agreements — Agreements concluded by the Union — Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Effects — Primacy over secondary EU legislation — Assessment, in the light of that convention, of the legality of an EU measure — Conditions — Whether Article 4(1) and (4) of the Convention may be relied on — Not permissible

By virtue of Article 216(2) TFEU, international agreements concluded by the European Union are binding upon its institutions and consequently prevail over their legal acts. It follows that the validity of an act of the European Union may be affected by the fact that it is incompatible with such rules of international law. However, the Courts of the European Union can undertake an examination of the alleged incompatibility of an act of the European Union with the provisions of an international agreement to which the Union is a party only where (i) the nature and the broad logic of that agreement do not preclude it and (ii) those provisions appear, as regards their content, to be unconditional and sufficiently precise. As regards the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, neither the reference, in Article 4(4)(c) of the Aarhus Convention, to enquiries of a criminal or disciplinary nature, nor the obligation, laid down in the second paragraph of Article 4(4) of that convention, to interpret in a restrictive way the grounds for refusal of access mentioned in Article 4(4)(c), can be understood as imposing a precise obligation on the EU legislature. A fortiori, a prohibition on giving to the concept of ‘enquiry’ [enquête] a meaning which takes account of the specific features of the Union, and in particular the task incumbent on the Commission to investigate [enquêter] any failures of Member States to fulfil their obligations which might adversely affect the correct application of the Treaties and the EU rules adopted pursuant to the Treaties, cannot be inferred from those provisions. Consequently, an applicant cannot rely on Article 4(1) and (4) of the Aarhus Convention in order to assess the legality of the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Further, it is admittedly true that, where the European Union intends to implement a particular obligation assumed under the agreements concluded in the context of the World Trade Organisation (WTO) or where the European Union legal measure refers expressly to specific provisions of those agreements, it is for the Court, when appropriate, to review the legality of the Union measure at issue in the light of the WTO rules. However, Regulation No 1049/2001, in particular the third indent of Article 4(2) thereof, makes no express reference to the Aarhus Convention and does not implement a particular obligation stemming from that convention. Consequently, the principle of review of the legality of acts of the European Union in the light of the WTO rules is, in any event, of no relevance. (see paras 33-37, 42, 43)

There is nothing in the case-law to indicate that an ‘investigation’, 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, is dependent on the existence of a formal decision adopted by the Commission as a college. As regards studies carried out at the request of and on behalf of the Commission, after the expiry of the period for transposition of a set of directives of the European Union concerning environmental protection, with the specific aim of determining what progress had been made in transposing the directives in a certain number of Member States, such studies are among the instruments available to the Commission, in the context of the obligation imposed on it, under Article 17(1) TEU, to oversee, under the control of the Court, the application of EU law, in order to uncover any failures by Member States to fulfil their obligation to transpose the directives concerned and in order to decide, when necessary, to initiate infringement proceedings against those Member States which it considers to be in breach of EU law. The studies fall, consequently, within the scope of the concept of ‘investigations’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Further, the fact that the task of carrying out such studies was entrusted by the Commission to an external service provider rather than being performed by its own staff, and that those studies neither reflect the position of that institution nor cause it to incur any liability, does not mean that the Commission, by instructing that such studies should be carried out, pursued an objective other than that of ensuring that it had available to it, by means of those investigations, in-depth information on the conformity of the legislation of a certain number of Member States with European Union environmental law, so that it was able to detect the existence of possible infringements of that law and to initiate, when necessary, infringement proceedings against the Member State in breach. (see paras 60-63)

In order to justify refusal of access to a document the disclosure of which has been requested under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is open to the institution concerned to base its decisions in that regard 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. As regards a request for access to studies carried out on behalf of the Commission concerning the transposition of a number of directives, where those studies had, when the decision to refuse access was adopted, already led the Commission to send a letter of formal notice to a Member State, under the first paragraph of Article 258 TFEU, and had, consequently, been placed in a file relating to the pre-litigation stage of infringement proceedings, the Commission was entitled to consider that the full disclosure of those studies would have been likely to disturb the nature and progress of that stage of proceedings, by making more difficult both the process of negotiation between the Commission and the Member State and the pursuit of an amicable agreement whereby the alleged infringement could be brought to an end, without it being necessary to resort to the judicial stage of those proceedings. The Commission was, consequently, justified in considering that such full disclosure would have undermined the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The fact that the contested studies were carried out by an external undertaking and do not reflect the Commission’s position is not such as to invalidate the foregoing analysis. On the other hand, the situation is otherwise as regards studies which, when the decision to refuse access was adopted, had not led to the sending by the Commission of a letter of formal notice to the Member State concerned, under the first paragraph of Article 258 TFEU, and where, consequently, it remained uncertain, at that time, that the outcome of those studies would be the opening of the pre-litigation stage of infringement proceedings against that Member State. In all the cases which gave rise to the recognition of a general presumption, the refusal of access in question related to a set of documents which were clearly defined by the fact that they all belonged to a file relating to ongoing administrative or judicial proceedings. That being the case, the Commission could not lawfully extend the scope of the presumption of confidentiality to such studies. Such reasoning would be incompatible with the requirement that such a presumption must be interpreted and applied strictly, since that presumption is an exception to the rule that the institution concerned is obliged to make a specific and individual examination of every document which is the subject of an application for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union. (see paras 68, 69, 72, 73, 78-81)