Kingdom of Sweden v Commission of the European Communities and Others.
Date: 2007-12-18
53. Reflecting that provision of the Treaty, which it impl ements, Regulation No 1049/2001, as may be seen from recital 4 in the preamble and Article 1(a), has the purpose of defining the principles, conditions and limits on grounds of public or private interest concerning the right of public access to documents, so as to give the fullest possible effect to that right.
55. As recital 10 in the preamble to Regulation No 1049/2001 emphasises, it is precisely the concern to improve the transparency of the Community decision-making process that explains that, as provided by Article 2(3) of the regulation, the right of access to documents held by the Parliament, the Council and the Commission extends not only to documents drawn up by those institutions but also to documents received from third parties, including the Member States, as expressly stated by Article 3(b) of the regulation.
56. By so providing, the Community legislature, as the Court of First Instance observed in paragraphs 53 and 54 of the judgment under appeal, abolished the authorship rule that had applied previously. As may be seen from Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43), Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58) and European Parliament Decision 97/632/EC, ECSC, Euratom of 10 July 1997 on public access to European Parliament documents (OJ 1997 L 263, p. 27), such a rule meant that, where the author of a document held by an institution was a natural or legal person, a Member State, another Community institution or body, or any other national or international organisation, the request for access to the document had to be made directly to the author of the document.
57. The provisions of Article 4(1) to (3) of Regulation No 1049/2001, which provide for various substantive exceptions, and of Articles 2(5) and 9, which lay down special rules for sensitive documents, thus take care to define the objective limits of public or private interest that are capable of justifying a refusal to disclose documents held by the institutions, whether they were drawn up by them or received by them, and in the latter case whether they originate from Member States or other third parties.
64. It follows that the right of public access would potentially be frustrated, to that extent, without any objective reason. The effectiveness of that right would thereby be substantially reduced (see, by analogy, Case C‑353/99 P Council  v Hautala  [2001] ECR I‑9565, paragraph 26).
66. On this point, it should be recalled, first, that in view of the objectives pursued by Regulation No 1049/2001, in particular the fact noted in recital 2 in the preamble that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the fact that, as stated in recital 4 in the preamble and in Article 1, the purpose of the regulation is to give the public the widest possible right of access, the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly (see, to that effect, in relation to the legislation prior to Regulation No 1049/2001, Joined Cases C‑174/98 P and C‑189/98 P Netherlands and van der Wal  v Commission  [2000] ECR I‑1, paragraph 27; Council  v Hautala , paragraphs 24 and 25; and, with reference to Regulation No 1049/2001, Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 63).
83. It remains to point out that, while the decision-making process thus established by Article 4(5) of Regulation No 1049/2001 requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in Article 4(1) to (3) of the regulation, it is none the less possible for the legitimate interests of the Member States to be protected on the basis of those exceptions and by virtue of the special rules for sensitive documents laid down in Article 9 of the regulation.
84. In particular, there is nothing to exclude the possibility that compliance with certain rules of national law protecting a public or private interest, opposing disclosure of a document and relied on by the Member State for that purpose, could be regarded as an interest deserving of protection on the basis of the exceptions laid down by that regulation (see, with respect to the legislation prior to Regulation No 1049/2001, Netherlands and van der Wal  v Commission , paragraph 26).
The procedural implications of the decision-making process established by Article 4(5) of Regulation No 1049/2001
91. It is true that, according to settled case-law, in an action brought under Article 230 EC the Court has no jurisdiction to rule on the lawfulness of a measure adopted by a national authority (see, inter alia, Case C‑97/91 Oleificio Borelli  v Commission  [1992] ECR I‑6313, paragraph 9).
92. It is also settled case-law that that position cannot be altered by the fact that the measure in question forms part of a Community decision-making procedure, where it is clear from the division of powers in the field in question between the national authorities and the Community institutions that the measure adopted by the national authority is binding on the Community decision-taking authority and therefore determines the terms of the Community decision to be adopted ( Oleificio Borelli  v Commission , paragraph 10).
93. In the present case, however, it must be noted that Article 4(5) of Regulation No 1049/2001 – unlike other Community legislation on which the Court has ruled (see, inter alia, Case C‑269/99 Carl Küh ne and Others  [2001] ECR I‑9517, paragraphs 50 to 54) – did not aim to establish a division between two powers, one national and the other of the Community, with different purposes. As pointed out in paragraph 76 above, that provision creates a decision-making procedure the sole object of which is to determine whether access to a document should be refused under one of the substantive exceptions listed in Article 4(1) to (3) of the regulation, a decision-making procedure in which both the Community institution and the Member State concerned play a part, in the terms stated in paragraph 76.
94. In such a case it is within the jurisdiction of the Community judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal was validly based on those exceptions, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the relevant Member State. From the point of view of the person concerned, the Member State’s intervention does not affect the Community nature of the decision that is subsequently addressed to him by the institution in reply to the request he has made for access to a document in its possession.
Setting aside of the judgment under appeal