Kingdom of Sweden v European Commission and MyTravel Group plc.
Date: 2011-07-21
48. The Commission, the Federal Republic of Germany, the French Republic and the United Kingdom of Great Britain and Northern Ireland claim that the Court should dismiss the appeal and order the Kingdom of Sweden to pay the costs.
The appeal
72. As a preliminary observation, it should be noted that, in accordance with the first recital of Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 EU – inserted by the Treaty of Amsterdam – of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions ( Sweden and Turco v Council , paragraph 34; Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission  [2010] ECR I‑0000, paragraph 68).
73. To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions ( Sweden and Turco v Council , paragraph 33; Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I‑0000, paragraph 51; Sweden and Others  v API and Commission , paragraph 69).
74. However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (see, to that effect, Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 62; Sweden and Others  v API and Commission , paragraphs 70 and 71).
75. However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly ( Sison v Council , paragraph 63; Sweden and Turco v Council , paragraph 36; Sweden and Others  v API and Commission , paragraph 73).
76. Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying ( Sweden and Others  v API and Commission , paragraph 72 and case-law cited). Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical ( Sweden and Turco v Council , paragraph 43).
77. Concerning the exception for protecting the decision-making process contained in Article 4(3) of Regulation No 1049/2001, it needs to be verified whether, as the Kingdom of Denmark and the Kingdom of Sweden argue, the fact that the documents concerned by that provision concern an administrative procedure that has already been closed is relevant for the specific application of the exception in question. Contrary to the facts at issue in Commission v Technische Glaswerke Ilmenau (paragraph 18), mentioned by the Kingdom of Sweden at the hearing, and as is apparent from paragraph 9 of this judgment, MyTravel made its request for access to the documents concerning the procedure which lead to the Airtours decision on 23 May 2005, that is to say at a time when that decision, which is dated 22 September 1999 had not only already been adopted but had also been annulled by the judgment of the General Court in Airtours  v Commission , against which the time-limit for lodging an appeal had, moreover, already expired.
82. The reasons invoked by an institution and capable of justifying refusal of access to such a document of which communication has been requested before the closure of the administrative procedure might not be sufficient for refusing disclosure of the same document after the adoption of the decision, without that institution explaining the specific reasons why is considers that the closure of the procedure does not exclude the possibility that that refusal of access may remain justified having regard to the risk of a serious undermining of its decision-making process (see, by analogy with the second indent of Article 4(2) of Regulation No 1049/2001, Sweden and Others  v API and Commission , paragraphs 132 to 134).
87. First, it is true that, as the Court has already stated, the administrative activity of the Commission does not require as extensive an access to documents as that concerning the legislative activity of a Union institution ( Commission  v Technische Glaswerke Ilmenau , paragraph 60; Sweden and Others  v Commission , paragraph 77).
88. However, that does not in any way mean, as the Kingdom of Sweden, the Kingdom of the Netherlands and the Republic of Finland have rightly pointed out, that such an activity falls outside the scope of Regulation No 1049/2001. Suffice it to note in that respect that Article 2(3) of that regulation states that the latter applies to all documents held by an institution, that is to say drawn up or received by it and in its possession, in all areas of Union activity.
109. In order to reply to the second plea in the appeal, it is necessary to recall at the outset that, as stated in paragraphs 87 and 88 of this judgment and contrary to what seems to be suggested, in particular, by the Commission, the administrative activity of the institutions does not escape in any way from the scope of Regulation No 1049/2001.
113. As regards, first, the fear that disclosure of an opinion of the Commission’s legal service relating to a draft decision could lead to doubts as to the lawfulness of the final decision, it is, as the Kingdom of Sweden has rightly argued, precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole ( Sweden and Turco v Council , paragraph 59).