Case T‑111/11

ClientEarth

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Studies received by the Commission concerning the transposition of directives on the environment — Partial refusal of access — Exception relating to protection of the purpose of inspections, investigations and audits — Specific and individual assessment — Compatibility with the Aarhus Convention — Overriding public interest — Consequences of exceeding the period for the adoption of an express decision — Extent of the obligation actively to disseminate environmental information’

Summary — Judgment of the General Court (Sixth Chamber), 13 September 2013

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Commission not complying with time limits for responding to an application for access — Implied rejection decision — Maintaining of the Commission’s power to reply outside the time limits to the application for access

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest justifying the disclosure of documents — Distinction from the principle of transparency

International agreements — European Union Agreements — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) — Provisions of that convention concerning grounds for refusing an application for access to environmental information — No direct effect — Decision to refuse access to documents of the institutions on environmental matters in relation to proceedings for failure to fulfil obligations — Compatibility with the convention

International agreements — European Union Agreements — Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) — Effects — Primacy over secondary legislation of the European Union — Assessment of the legality of an EU measure in the light of that convention — Conditions

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Requirement that the institution should examine the documents specifically and individually — Scope — Exclusion of the obligation — Documents forming part of a Commission file in relation to an investigation concerning the transposition of directives — Lawfulness

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 objectives of inspection, investigation and audit activities — Scope — Documents gathered in the context of an investigation concerning proceedings for failure to fulfil obligations — Included

See the text of the decision. (see para. 36)

See the text of the decision. (see para. 42)

See the text of the decision. (see paras 47, 48)

The Commission may legitimately rely on the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse access to documents relating to investigations of a possible contravention of EU law which might lead to the initiation of infringement proceedings or which have in fact led to the initiation of such proceedings. In those circumstances, refusal of access has been considered justified because the Member States concerned are entitled to expect the Commission to observe confidentiality as regards investigations, even where a period of time has elapsed since the closure of those investigations. In particular, the disclosure of documents relating to the investigation stage, during the negotiations between the Commission and the Member State concerned, could undermine the proper conduct of the infringement proceedings inasmuch as its purpose, which is to induce the Member State concerned to comply voluntarily with Treaty requirements or, if appropriate, to give it an opportunity to justify its position, could be jeopardised. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State concerned regarding the latter’s voluntary compliance with Treaty requirements may continue during the court proceedings and up to the delivery of the judgment. The preservation of that objective, namely an amicable settlement of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, therefore justifies refusal of access to those documents. (see paras 58, 59)

Where an institution is asked to disclose a document, it must assess, in each individual case, whether that document is covered by the exceptions to the right of access set out in Article 4 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. The examination of a request for access to documents must be specific and individual and must relate to the content of each document referred to in that request. The nature of that examination must be apparent from the reasons stated for the institution’s decision, in relation to all the exceptions mentioned in Article 4(1) to (3) of that regulation on which that decision is based. Such an examination may, however, 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 manifestly covered in their entirety by an exception to the right of access, were manifestly accessible in their entirety, or had already been the subject of a specific, 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 general considerations of a 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. Thus, according to the particular circumstances of the case, the Commission is entitled to consider, first, that all the studies ordered by it in the context of the preliminary phase of the procedure for failure to fulfil obligations and which examine in depth the conformity of the legislation of the Member States concerned with EU law fall within the same category of documents and, secondly, that access to that category of documents has to be refused on the basis of the exception under the third indent of Article 4(2) of the said regulation. Those studies constitute material which may have an effect on the extent to which the Commission can commence negotiations with those Member States, free from external pressure, with the objective that the Member States comply voluntarily with EU law. The studies at issue are targeted documents, the purpose of which is the analysis of the transposition by a specific Member State of a specific directive, which are intended to form part of a Commission file relating to that transposition. Where infringement proceedings have already commenced, it cannot be held that those studies are not part of the file relating to those proceedings, since those studies are among the material on which the Commission based its decision to commence those proceedings. As regards studies in respect of which the Commission has not yet initiated infringement proceedings, it is equally necessary to maintain their confidentiality, since once information is in the public domain it cannot be withdrawn when the proceedings are commenced. (see paras 64, 65, 68-70, 79)

By virtue of Article 216(2) TFEU, where international agreements are concluded by the European Union they are binding on its institutions, and consequently they prevail over acts of the European Union. The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters. Consequently, the provisions of that convention now form an integral part of the legal order of the European Union. The legality of an act of the European Union may be affected by the fact that that act is incompatible with an international agreement. Where it is claimed before the Courts of the European Union that an act of the European Union is incompatible with rules of international law, those courts may examine the issue provided that two conditions are satisfied. First, the European Union must be bound by those rules. Secondly, the Courts of the European Union can examine the legality of an act of the European Union in the light of a provision of an international treaty only where the nature and the broad logic of the latter do not preclude this, and, moreover, where that provision can be seen, as regards its content, to be unconditional and sufficiently precise. (see paras 84, 85, 91)

The European Union is bound by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention). However, as regards the grounds for refusal of a request for access to environmental information, that convention cannot be seen, as regards its content, to be unconditional and sufficiently precise. That convention, and in particular Article 4(4)(c) thereof, was manifestly designed to be applicable principally to the authorities of the States which are contracting parties thereto and uses concepts appropriate to them, as is apparent from the reference to the framework of national legislation in Article 4(1) thereof. On the other hand, the convention does not take into account the specific features which are characteristic of institutions of regional economic integration, which may nonetheless accede to the convention. In particular, there is nothing in Article 4(4)(c), or in the other provisions of the Aarhus Convention, which makes it possible to interpret the concepts used in that provision and to determine whether an investigation relating to infringement proceedings can be covered by such concepts. In the absence of any specific information for that purpose, it cannot be held that the Aarhus Convention prevents the EU legislature from providing for an exception to the principle of access to the documents of the institutions relating to the environment where those documents pertain to infringement proceedings, which form part to the constitutional mechanisms of EU law, as established by the Treaties. In those circumstances, the third indent of Article 4(2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents cannot be regarded as incompatible with Article 4(4) of the Aarhus Convention, in that that provision does not allow any exception to the right of access to documents intended to protect the purpose of investigations other than those of a criminal or disciplinary nature. (see paras 92, 96, 97, 99)

The public’s right to receive that information constitutes the expression of the principle of transparency, to which the provisions of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, as a body, give effect, as is apparent from recital 2 in the preamble to that regulation, according to which openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to them, and contributes to strengthening the principle of democracy. Nonetheless, the overriding public interest, referred to in Article 4(2) in fine and the first subparagraph of Article 4(3) in fine of Regulation No 1049/2001, which is capable of justifying the disclosure of a document which undermines or seriously undermines the legal interests protected by the exceptions provided for in those provisions must, as a rule, be distinct from the abovementioned principles which underlie that regulation. Admittedly, the fact that a party requesting access does not invoke any public interest distinct from the abovementioned principles does not automatically imply that it is unnecessary to weigh up the competing interests. The invocation of those same principles may, in the light of the particular circumstances of the case, be so pressing that it outweighs the need to protect the documents in question. However, that is not the case where the applicant for access does no more than refer to non-specific considerations unrelated to the particular circumstances of the case, namely that citizens have a right to be informed of the extent to which the Member States are complying with European Union environmental law and to participate in the procedure for making decisions. Non-specific considerations cannot provide an appropriate basis for establishing that the principle of transparency represents in a specific case an issue of particularly pressing concern which prevails over the reasons justifying the refusal to disclose the documents requested. (see paras 106-109)

See the text of the decision. (see para. 117)

See the text of the decision. (see paras 118, 119)