Marcin Krzemień, second year

The right of access to documents in the European Union – recent development in case-

law

Introduction

The right of access to public documents constitutes an important part of the broader right of

access to public information – one that is indispensable in the current information society.

Access to documents allows the public to participate in the process of governance and

exercise more effective control over particular bodies and institutions. If the public

documents are easily accessible, the operations of the institutions become more open,

accountable and transparent. Therefore, wide right of access to documents is something

definitely desirable in modern democratic states. Nevertheless, no-one can expect that the

right of access to documents should be wholly unlimited. Important as it is, it will often be

confronted against other rights and interests such as e.g. the protection of personal data or

confidential information relating to public security.

Given the common criticism the EU has faced with regard to ‘deficit of democracy’ of its

institutions, efficient exercise of the right of access to documents is the more important1.

Indeed, in the paper it will be shown that the basic principles governing the EU policies in this

field are ‘widest possible access’ and ‘transparency’. There are however, as suggested in the

first paragraph, exceptions to these principles. Of course, where two interests – access to

documents on one hand and other interest requiring nondisclosure on the other – clash, a line

has to be drawn. It is nothing strange that third parties requesting wide access are trying to

push the line in one direction – widen the scope of access – while it is typically the EU

institutions willing to preserve a degree of secrecy in handling some of the more delicate

documents. In this paper I will be looking at the most important instrument governing the

right of access to documents – the Regulation 1049/2001. I will briefly describe the rules

governing the right of access, giving particular attention to the exceptions to the principle of

‘widest possible access’. Specifically, I will focus on some of the most recent case law of the

EU judicature to indicate problems relating to the interpretation of the Regulation which have

not yet – after more than a decade since the Regulation came into force – have been resolved.

1 On how the access to public documents has contributed to the institutions’ openness see e.g. “Green Paper - Public Access to Documents held by institutions of the European Community – a review”

Finally, I will try to briefly compare the EU legislation on right of access to documents to the

Polish national rules regarding the same right.

Regulation 1049/2001

Article 1 TEU in its second indent lies down the principle of openness and closeness to

citizens with respect to the EU decision making process. The right of access to documents

held by the EU institutions stems from Article 15 of the TFEU (previously Article 255 TEC).

Paragraph 1 of this Article provides, following the Article 1 TEU logic, that EU institutions

shall ‘conduct their work as openly as possible’ and do so ‘in order to promote good

governance and participation of civil society’. Paragraph 3 further explicitly provides that

‘citizens of the Union (…) shall have a right of access to documents of the Union’s

institutions, bodies, offices and agencies, whatever their medium’ and adds that their

proceedings should be transparent (second indent). The third sentence of Article 15 says that

disclosure duties (the effect of exercising the right of access) of the European Court of Justice

and European Central Bank are limited to administrative tasks. The last subparagraph of

Article 15 adds that Council and Parliament should accordingly publish documents relating to

their legislative process.

The primary instrument implementing the Treaty provisions as per Article 15, paragraph 3,

second indent is the Regulation 1049/2001 regarding public access to European Parliament,

Council and Commission documents which came into force in December 2001. The principles

of transparency and openness enshrined in the above described Article 1 TEU and Article 15

TFEU are reflected in how the regulation defines the right of access. Recital 4 of the

regulation provides that it aims at providing ‘the fullest possible effect to the right of public

access to documents’ while recital 10 underlines the principle of openness which the EU

institutions should follow. In Article 1 (a) of the Regulations it is explicitly stated that its goal

is to ensure ‘widest possible access to documents’. Furthermore, sections (b) and (c) add that

the right of access should be exercised in the easiest possible way and that good

administrative practice on access to documents shall be promoted.

Articles 1, 2 and 3 of the Regulation jointly define its scope and beneficiaries. Firstly, Article

1 says that the Regulation concerns documents held by the Commission, Council and

Parliament2. Additionally, recital 8 of the Regulation provides that the same duties of 2 It is worth to note that the Lisbon Treaty has extended the principle of transparency of openness and transparency to all Union’s institutions, bodies, offices and agencies (see Article 15 TFEU discussed above and Leino, p. 233).

document disclosure are applicable to all the agencies established by the three institutions.

Secondly, and not surprisingly, Article 2 paragraph 1 provides that the right of access to

documents may be exercised by citizens of EU Member States and ‘any natural or legal

person residing or having its registered office in a Member State’. Paragraph 2 adds that the

institutions may, on their own discretion, grant access to applicants not covered by paragraph

1. Thirdly, Article 3 (a) and Article 2 paragraph 3 jointly define the concept of “documents

held by the institutions. Article 3 (a) gives a very broad meaning to the idea of document

defining it as – basically – any piece of information, in any form, in the possession of a

particular institution and relating to its sphere of competence. Article 2, paragraph 3 jointly

with Recital 10 explain what the word ‘held’ means for the purpose of regulation. It does not

refer only to documents ‘drawn up’ or produced by the institutions but also to ones received

by them in the course of exercising their competences.

Articles 1, 2 and 3 read jointly (and while having in mind the above-mentioned recitals) direct

us that the regime of accessing documents established by the regulation is indeed operating on

the principle of widest possible access where all the relevant concepts (e.g.: who has the

access and what is a document held by an institution) are defined very broadly. However, as it

has already been suggested in the introduction to this paper - the right of access to

institutional documents has to be subject to certain limitations. On many occasions the right of

access will have to be confronted against other rights and interests. This issue is dealt with by

the regulation in Article 4 which lists all the exceptions to right of access.

These exceptions have been on many occasions subject to interpretation of the European

courts and have been discussed in detail3 by scholars. To refer to each and every one of them

is beyond the scope of this paper. I will limit myself to briefly describing the way they operate

in and summarizing the most important cases of the last few years which so to say ‘set the

table’ for the current legal state.

The Article 4 exceptions to right of access

The exceptions from Article 4 are grouped in several categories – in decreasing order of the

degree of protection granted to particular interests guarded by them. The exceptions listed in

paragraph 1 (protection of the public interest as regards: public security, defence and military

matters, international relations, the financial, monetary or economic policy of the Community 3 An in-depth analysis of particular exceptions to the right of access has been presented by D. Adamski in “How wide is ‘the widest possible’? Judicial interpretation of the exceptions to the right of access to official documents revisited.” – Common Market Law Review 46/2009

or a Member State) preclude access ‘regardless of how great the interest advocating disclosure

may be’4. The ones from paragraph two cover less pressing and inviolable exceptions (the

protection of: commercial interests of a natural or legal person, including intellectual

property, court proceedings and legal advice, the purpose of inspections, investigations and

audits) and in invoking will require ‘balancing of interests for and against disclosure’5.

However, this balance is initially weighed down on the side of non-disclosure since this

paragraph in general prevents disclosure ‘unless there is an overriding public interest’. The

exception from Article 4 paragraph 3 (decision-making process of the institutions) will

require a ‘qualified harm test’6 to be invoked – i.e. the institution will – in addition to

paragraph 2 balancing – have to show that disclosure would ‘seriously undermine its decision-

making process’. Documents submitted by the Member States are given special protection, in

comparison with other third parties, through Article 4 paragraph 5 (contrast to paragraph 4).

Finally, Article 4 paragraph 7 completes the rules on exceptions in clarifying that they are in

general limited in time (the exceptions may last for a maximum of thirty years with a possible

extension in certain circumstances).

Specific exceptions on access to information – important ECJ case-law7

First of all, the starting point to the developments in interpretation of the exceptions on right

of access was the Sweden and Turco v Council8 judgment. The case considered access to

opinion of the Council legal service on a legislative file presented on a Council meeting.

Accordingly, it dealt with the Article 4 paragraph 2 exception relating to protection of legal

advice. The Council argued that disclosure of such an opinion would lead to doubts as to the

lawfulness of the legislative act in question. The court, in what is referred to as a

‘spectacularly progressive’ judgment disagreed stating that it is precisely openness and

transparency which reinforce the lawfulness of the legislative process.9 Therefore, the bar for

invoking the exceptions to the ‘widest possible access principle’ was set very high. As such,

in its progressiveness the Turco ruling may be seen as the ‘benchmark’ for the cases which

were decided later on.

4 Adamski, p.25 Ibidem6 Adamski, p. 37 The analysis is based on the article by Paivi Leino – „Just a little sunshine in the raing: the 2010 case law of the European court of Justice on access to documents”, Common Market Law Review, 48/20118 Case C-39/059 Leino, p. 233

In general, in assessing a particular request for access to documents the institutions are

obliged to examine each of the requested documents individually. However, in the VKI v

Commission10 case, where a request was made to access a file consisting of over 47 000

pages, the court sympathized with the latter party and the administrative burden placed on it.

It was held that such a request was ‘manifestly unreasonable’ and the Commission did not

have to proceed with an individual assessment. However, as suggested by Leino11 the Court

wanted to underline that this was an exceptional situation and usually the documents will

require, as a matter of principle, individual assessment by the EU institutions.

In the context of the two above cases, the TGI v Commission12 case significantly downgrades

the standard of openness and transparency required from the EU institutions. The case

considered access to a large state-aid file and - referring to the 1049/2001 Regulation - the

exception from article 4 paragraph 2 concerning inspections, investigations and audits. Since

the parties interested in the document could not consult the Commission, the Court found that

there was a general presumption that the file was covered by the exception. The interest party,

according to the court, should have proven that a public interest in disclosure could override

this general presumption.13 Clearly, this judgment was a step back when compared to Turco

given that it created a very wide presumption referring to a whole class of audit documents

(potentially any documents on state-aid since the interested parties can’t consult the EU

institution on access). The court also failed to use the opportunity and, following VKI, did not

lay down objective criteria which could be utilized by the institutions when facing a request

for a large file potentially requiring a great deal of administrative work14.

Also, in 2010 the Court created another general presumption, this time referring to the court

proceedings. The case concerned is Sweden and API v the Commission.15 The facts were

that API – an NGO – requested from the Commission access to files relating to proceedings

dealt with by the ECJ. The court, on appeal from the General Court, ruled that documents

concerning pending court proceedings are generally covered by the exception from Article 4

paragraph 2 of the 1049/2001 regulation. It is presumed that disclosure would undermine

court proceedings. The ECJ argued that, first of all, disclosure could influence the atmosphere

of total serenity of the court proceedings (par. 92). Secondly, it could undermine the principle

10 Case T-2/03, Verein fur Konsumenteninformation v. Commission, [2005] ECR II-112111 Leino, p. 23512 Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-000013 Leino, p. 23614 Ibidem.15 Sweden and API v Commission – Joined cases C-514/07 P and C-528/07 P

of the ‘equality of arms’ of the parties (par. 86). The rationale was that the Commission,

forced to disclose files relating to pending proceedings would be subject to more public

pressure and stress than the other parties to the cases. While in general one may agree with the

Court that pending proceedings should be given special protection, several points have to be

made. First of all, the requests made by API in this case considered access to cases where the

other parties had considerable economic power and leverage – comparable to the one of the

Commission. Secondly, when comparing this decision with the Turco ruling, it would seem

that court proceedings have been given a considerably greater degree of protection than the

legal advice.

Finally, in the last of the big access to documents cases in 2010 - the Bavarian Lager16 - the

court dealt with the clash between the right of access to documents and protection of personal

data (Regulation 45/2001). In the case a request was made for a document from a meeting

between the Commission, an interest group and UK officials. With respect to the document,

the applicant wanted to be granted access in particular to the names of the persons who

attended the meeting (some of whom expressly refused to disclose their data). Therefore the

question was one of the collision between the 1049/2001 Regulation on document access and

the 45/2001 Regulation on data protection.

In her opinion Advocate General Sharpston suggested to introduce a test in which the

document would be weighed according to the amount of personal information it included.

Depending on whether a document mentioned personal data incidentally, or rather consisted

of a large amount of personal data, data access rules or data protection rules should be

applied17. The court however disagreed with this proposal and referred to the Article 4

paragraph 1 (b) exception (privacy and integrity of an individual). In the court’s view it

should be applied in the light of the system of protection established in the 45/2001

Regulation and none of the legal acts should be disregarded in favor of the other. It was

argued that such an interpretation is very conservative and grants a great deal of protection to

any personal data, without giving any consideration as to whether protection of privacy is

actually necessary or to the interest presented by the applicant.18

The above cases have been well discussed and despite being relatively new, have already

managed to make an impact on the more recent judgments of the European courts. In the next

16 Case C-28/0817 Leino, 24118 Leino, 242

part of the paper I will try to present some of the newer cases from the ECJ and General Court

and picture the problems and new questions which arise upon their reading with respect to the

interpretation of the 1049/2001 Regulation.

MyTravel – protection of legal advice and decision-making process of the institutions

The case MyTravel v Commission [2011]19 discusses the application of several exceptions

enshrined in Article 4 of the Regulation Two of them are listed in paragraph 2 – the ones

referring to protection of legal advice (and court proceedings) and inspections, investigations

and audits. Furthermore, the case discusses the exception concerning protection of

institution’s decision making process listed in Article 3, paragraph 3.

Following an earlier CFI judgment in a case against MyTravel20 (then named Airtours, the

judgment concerned concentrations of two British travel companies) the Commission

‘established a working group comprising officials of the Directorate-General for Competition

(‘DG Competition’) and the legal service in order to consider whether it was appropriate to

bring an appeal against that judgment’ (par. 9 of the CFI judgment). The report was

completed by the working group and presented to the Commission in 2002. In 2005 MyTravel

requested access to documents concerning the review of the judgment – the report itself, the

working papers and other internal documents. The Commission rejected access to most of the

documents (par. 11).

In doing so, the Commission invoked the exceptions relating to protection of legal advice (1),

inspections and investigations (2) and decision-making process (3) with respect to the report

and working papers. It also submitted that some internal documents originating from the

working group are also covered by exceptions (2) and (3) listed above. Different internal

documents (notes written by the Commission’s legal advice) were, in the Commission’s view,

covered by exception (1). The Court of First Instance supported the Commission’s arguments

(without referring to exception (2) since it found it unnecessary to discuss). The ECJ tackled

separately the problems referring to first: the report, working papers and internal documents

of the working group and second: the notes drawn up by the Commission’s legal advice. I will

follow this scheme, referring to the CFI judgment, accordingly.

As it was already submitted, the Court of First Instance supported the Commission’s position.

The primary judgment was very conservative. With respect to the report, the court found that

19 Case C-506/0820 Case T 342/99 Airtours v Commission, 2002

disclosure would threaten the Commission’s decision-making process (par. 79). (For the sake

of completeness, it has to be added that the court found the working papers to also be covered

by this exception, since the report was so.) The court found it dangerous for the opinions of

the Commission’s officials included in the report to be made public. The content of the report

could, in the court’s view, be subsequently compared with the Commission’s actual decisions

which could in effect lead to exercising self-censorship by its officials. In other words,

disclosure of the report was found to hamper the decision making as it could lead to

‘tempering’ of the Commission’s reviews and opinions. A similar rationale was followed by

the court in ruling on the disclosure of the internal documents originating from the working

group (par. 104). Again, the court held that they were covered by the decision-making process

exception because otherwise - disclosure could impart its authors’ freedom of expressing their

views and lead to self-censorship. From this reasoning, it is clear that the Court of First

Instance found that a situation in which actual decisions of an institution are compared with

what it came up with in the course of making such a decision is particularly undesirable. It is

worth noting that the court also held that: first, the risk faced by the Commission was

reasonably foreseeable and not purely hypothetical and second, that there was no overriding

public interest in disclosure since the documents were drawn up in the course of exercising an

administrative (not legislative) function by the Commission where the need of disclosure is

not as pressing (par. 125-126).

This part of the judgment was struck down by the ECJ. The Court of Justice first followed the

direct wording of Article 4, paragraph 3. It underlined that for the purpose of implementing

this exception it is important whether the decision has actually been made or not. Only the

internal documents fall within the scope of paragraph 3 exception after a decision is made (if

there is a risk of undermining decision-making process – one has to bear in mind that the

exception is not absolute). Other documents (such as the debated report) cannot be refused

access to once the decision is made (par. 77-80). According to the court – and given the

wording of the first and second indents of paragraph 3 rightfully so - at that point the

requirements of protecting the decision-making process are ‘less acute’. With respect to the

internal documents the court added that while it is possible that even after making a decision

they will be covered by paragraph 3 exception, attention must be given to the fact that the

decision has already been made. Concluding: following MyTravel before a decision is made

by an institution, all the documents drawn up in the course of decision-making process may

be covered by the Article 4 paragraph 3 exception (it is not an absolute one). After the

decision is made – only the internal documents may fall within its scope but they will be

given lesser degree of protection.

As regards, the documents in the discussed proceedings, the ECJ held that the Commission

correctly identified the relevant documents as internal ones.

The problem is that while the court justified its view and has made some suggestions

regarding what can be understood as an ‘internal document’ (e.g. it said that the likelihood of

publishing a document does not exclude the possibility that it is an internal one), it didn’t give

us a test or criteria which would be of help in future cases. The distinction between internal

and non-internal documents is not clear-cut and the court’s clarification of Article 4 in this

field could be very useful.

Regarding the documents in MyTravel case, the ECJ held that: First - on the basis of Article 4

paragraph 3 reading the GC was wrong in ruling that MyTravel should not be granted access

to the report (because the decision has already been made). Second - it was wrong in ruling

that MyTravel should not be given access to working papers because the reasoning described

in par. 24 of the CFI judgment was unfounded. Third: that it was wrong yet again while

deciding on the access to internal documents. While they were covered by Article 4

paragraph 3 protection, the Commission has failed to give specific reasons as to why access

should be prevented. The reasoning of the Court is undoubtedly correct. However, given the

principle of widest possible access and strict interpretation of exceptions (which the ECJ itself

reminded in par. 75) it should have clearly held that the Commission’s arguments were purely

hypothetical as it was argued by the Kingdom of Sweden which was lodging the appeal in this

case.

Indeed, it is surprising that the Court of First Instance initially found that the risk faced by the

Commission was not hypothetical. The line of arguments presented in support of the

Commission’s plea could very well be repeated with respect to any documents procured in the

course of decision-making process. There always exists a risk of pressure being exerted on an

author of a report or internal document when his views presented in such a document are

compared with the final decision. However, maintaining that such general risk justifies non-

disclosure of documents would be contrary to the rationale and provisions of the 1049/2001

Regulation.

Regarding the exception referring to the protection of legal advice invoked by the

Commission with respect to the notes drawn up by the Commission’s legal service, the CFI

used legal reasoning not so different from the one followed while deliberating on the

exception relating to decision-making process, described above. The court again supported the

Commission and held that disclosure of these documents would risk communicating to the

public information concerning internal legal advice and consultations on lawfulness of the

Commission’s actions (par. 36). In effect, it could happen that the legal service would

ultimately have to defend a position different from the one debated internally (and now

publically known) before the Court of Justice. Such a situation would, according to the CFI,

have a negative effect on the legal service’s freedom to express its view and effectively plead

the case.

Again, this reasoning was struck down by the ECJ. The Court of Justice followed the

reasoning of the Kingdom of Sweden. Council for Sweden argued that there is no risk that

disclosure of an opinion on a draft decision drawn up by the legal advice would undermine

the lawfulness and legitimacy of the Commission’s decision-making process. To the contrary

– it argued that it is disclosure and openness in this field that contributes to greater

transparency and legitimacy of the Commission’s decisions. The Court of Justice fully agreed

with this reasoning (par 113). It also discarded the argument that the citizens of the EU could

question the legality of EU acts whose lawfulness was contested by the legal advice of the

Union (par. 114) and added that the Commission’s arguments were based on ‘general and

abstract considerations (par. 115) rather than on concrete and specific risks the Regulation

would require. Overall, it ruled that in the field of the CFI was again wrong in preventing

MyTravel from access to documents.

Lecture of the MyTravel judgment gives a clear idea that the Court of Justice applied very

strict meaning to the wording of exceptions relating to protection of legal advice and decision-

making process. The rationale of the judgment is definitely closer to the progressive spirit of

the Turco ruling than to the one of TGI. It seems that the standard of protection granted to

administrative proceedings and in particular: protection of legal advice in such proceedings is

weaker than e.g. the standard granted to pending court proceedings (see: Sweden and API v

Commission).

LPN21 – Protection of inspections and audits, relation to the 1367/2006 Regulation

21 Case T-29/08

The facts of the case are that LPN – a Portuguese legal association in 2003 lodged a complaint

to the DG Environment of the Commission against a potentially harmful environmental

project (in line with the 79/409 Council Directive). The Commission initiated audit

proceedings. Subsequently, in 2007 LPN requested access to all the documents relating to the

audit (par.10). Following an exchange of letters between LPN and the Commission, the latter

refused to grant LPN access to documents. In the decision, the Commission invoked the

Regulation 1049/2001 and the Article paragraph 2 exception relating to protection of

inspections, investigations and audits. Specifically, the Commission argued that disclosure of

the documents could undermine the atmosphere of mutual trust between itself and interested

Member States (Portugal). The inspection process was still pending and the Commission

claimed that disclosure could prevent it from effective investigation of the allegedly harmful

project. (par. 20).

Later on, the Commission decided to remit proceedings against Portugal and therefore the

invoked exception lost its ground. The Commission agreed to grant LPN access to documents

of the case, however restricted some of them invoking the Article 4 paragraph 3 exception

relating to the decision-making process and Article 4 paragraph 2 exception relating to court

proceedings (par. 33). However, the General Court’s judgment referred to the exception

concerning investigations, inspections and audits mentioned earlier since it was the subject of

the contested decision.

It would seem that LPN had strong arguments on its side. First of all, LPN argued that the

relevant exception should be interpreted strictly. In the case at hand it was reinforced by the

provisions of Regulation 1367/2006. This regulation refers to granting environmental

information and Article 6 paragraph 1 of this regulation ‘raises the bar’ for institutions

wanting to invoke exceptions to access to documents as per Regulation 1049/2001 where the

documents refer to environmental matters. According to the LPN, in the case at hand the

Commission failed to perform and individual assessment of the documents. Additionally, it

was argued that the risk that the Commission was supposedly facing was purely hypothetical

and not reasonably foreseeable. As such, it could not amount to invoking an exception (par.

83-94).

The Court however, did not agree. It was held that it is ‘in principle permissible’ that an

institution relies on a general presumption referring to a class of documents (par. 114). The

Court relied in its reasoning on the earlier described TGI judgment, discarding the argument

basing on stronger need to provide environmental protection (par. 122). The case is currently

under appeal. Definitely, the connection of this case to the 1367/2006 Regulation is important

and it remains to be seen how the ECJ will view the relation between the two regulations and

in particular – the importance of Article 6 of the Regulation 1367/2006 as lex specialis to the

exceptions laid down in the Regulation 1049/2001. However, it has to be pointed out that the

tendency to find ‘general presumptions’ in favor of the institutions has been significantly

stretched since the original Turco ruling and following TGI.

IFAW - access to documents received by the institutions from the Member States

The case IFAW v Commission [2011]22 deals with the issue of access to documents

originating from Member States as per Article 4 paragraph 5 of the 1049/2001 Regulation. In

this case, the Commission initially delivered the opinion on carrying out an industrial project

in a protected zone, acting on request of the state of Germany. Consequently, a third party -

IFAW – requested access to some documents received by the Commission from Germany for

the purpose of delivering an opinion (GC judgment, par. 8). The Commission refused access

applying, on the basis of the Regulation, article 4 paragraph 5 exception protecting documents

received from the Member States. Kingdom of Sweden intervened in the proceedings and

lodged an appeal before the ECJ. The appeal lead to the famous and significant Sweden v

Commission23 judgment. At this point it is worth to point that the court in the said judgment

interpreted the Article 4 par. 5 exception and disagreed that it grants the Member States a

general and unconditional power of veto with respect to access to documents which they hold.

Following this judgment, IFAW once again requested access to the above-mentioned

documents. The Commission granted access to all of them but one (par. 8-22). Having

consulted Germany, it refused to disclose a letter from the German Chancellor to the President

of the Commission (the Member State invoked Article 4 paragraph 1 exception). The dispute

before the General Court was often referring to the Sweden v Commission judgment as the

court discussed two points of law. First, it deliberated on the scope of review an EU institution

can exercise with respect to a refusal of access to documents received from a Member State.

Secondly, it discussed the power of review possessed in the same situation by the EU

judicature itself.

With regards to the power of review exercised by an EU institution (here: Commission), the

court produced a reasoning based on the Sweden v Commission judgment (par. 71 and

22 Case T-362/0823 Case C-54/06

further). It was held that the power conferred on Member States in Article 4 par. 5 was indeed

not a right of veto but rather ‘a form of assent confirming that none of the grounds of

exception under Article 4(1) to (3) is present’ (par. 74). The Member State’s decision

regarding access to its documents shall be preceded by dialogue and cooperation with the EU

institution (still - it’s the Member State’s discretion – it does not decide jointly with an

institution). In making such a decision the Member State should act just like an institution

facing request to access its documents: if the Member State refuses to disclose to third parties,

it must give reasons based on substantive exceptions of the Regulation (Article 4 (1) to 4 (3) ).

Concluding: The Member State answers ‘Yes/No’ to the question on access to its documents

and in the negative – gives reasons why. It is however the EU institution which ultimately has

to give the decision on access to documents to the third party who requested it. The

institution, not the Member State is responsible for this decision. Hence the question – in what

situations can it oppose the Member State’s refusal and what is the scope of the review it may

exercise?

Unfortunately, the court has failed to sufficiently deliberate on this matter. Consequently

following Sweden v Commission it was held that a Member State’s refusal is unacceptable

where it does not fall within the scope of Article 4 (1) – (3) exceptions and that the reasons for

refusal have to be understandable for the person requesting access to documents (par. 82, 83).

On further points the court has, however, limited itself to ruling that since in the case at hand

the Commission agreed with the Member State’s point of view, the question about the scope

of its review does not have to be answered. It begs to ask – what if the Commission does not

agree with the Member State in a sense that the latter has invoked substantive exceptions in its

refusal but the Commission is of the opinion that they have been invoked wrongly?

These issues are tackled by Advocate General Villalón in his opinion to the case. In

paragraphs 44-49 he briefly describes the interpretation of Article 4 (5) exception as per

Sweden v Commission judgment (in principle agreeing with the reasoning of the General

Court from IFAW). Most importantly, he lies down that Article 4 (5) of the Regulation is a

procedural provision in which the Member States ‘play part’. It is indeed a peculiar procedure

– as I indicated above the EU institutions have the sole right to refuse access to documents

held by them. At the same time, the Member States have a limited right of veto which – it

seems - when exercised can hardly be countered by the EU institutions. Advocate Villalón has

suggested (par. 44 of the opinion) that the ECJ aimed at ‘proceeding beyond the dichotomy’

at one side of which the Member States would have a general power of veto and on the other

– purely opinionative say. It is submitted however that at the current point the legal state

resembles rather sitting on the fence than proceeding beyond any dichotomy. In par. 48 of the

opinion Advocate General stated that when the Member State refuses access to its documents

in a way which is correct procedurally (i.e. it gives reasons and refers to substantive

exceptions from the Regulation), the EU institutions ‘may or perhaps must’ follow the refusal.

The problem is precisely that we do not know if they ‘may’ or ‘must’ support the Member

State’s submission. This question remains unresolved and perhaps it is for the ECJ to answer

it in IFAW.

As regards the review which can be exercised by the EU judicature, both the General Court

and the Advocate General agreed that the EU courts have the right to exercise full, and not

just prima facie, review when following invoking an Article 4 (5) exception proceedings are

brought before the court. However, the General Court in two short paragraphs (153, 154)

ruled that in exercising its review it shall base on the parties’ pleas and submissions and will

not require producing of the original document in question. Advocate Villalón strongly

opposed this view suggesting that a complete judicial review of the contested decision is

impossible when the original document has not been produced to the court. In particular, in

paragraph 72 of the opinion he stated that ‘however low intensity may be, that review must

always be carried out in the light of the disputed document in question’. It is submitted that

this reasoning is correct. There is no immediate danger whatsoever in allowing the EU courts

access to documents in camera. On the contrary, to request from them giving judgments on

the substance to documents to which they do not themselves have access to would be as if

requiring to give the judgment blindfolded.

European Commission v Agrofert Holding, a.s. – professional secrecy and commercial

interests of the parties

The facts of the case concerned a Czech company – Agrofert Holding requesting access to

documents on the acquisition of Unipetrol by Polish company PKN Orlen (Agrofert was a

minority shareholder at Unipetrol. The Commission refused to grant that request, on the

ground that the request was general in nature and that the exceptions laid down in Article 4

paragrpah 2 and 3 of Regulation 1049/2001 were applicable. The Commission also argued

that disclosure of these documents would be violation of the obligation of professional

secrecy (Article 339 TFEU)24.

24 Opinion of Advocate General Villalón on Agrofert, par. 11 - 15)

The applicant argued that the Commission merely indicated that the relevant documents

related to protected interest but the Commission has failed to prove that an exception was

applicable (GC judgment, par. 47).

The Court on the other hand has underlined the necessity to interpret the exceptions strictly

(par. 57) and to conduct an individual assessment of each document. It has also struck down

the Commission’s argument relating to the professional secrecy. In the court’s view

professional secrecy cannot trump the need of conducting concrete, individual assessment of

each document. The Commission could not presume that all the documents were covered by

the exception (par. 69). The court was not convinced by the argument that a more concrete

assessment would amount to disclosure of some of the content of the documents in question.

On an important note, the General Court did deliberate on ‘general presumption’ solution

followed by the ECJ in TGI. The court agreed that some documents might be ruled to be

‘manifestly covered in its entirety’ by an exception but not in the case at hand (par. 79). The

court suggested that it would be too wide a class of documents to introduce a general

presumption in favor of non-disclosure of merger documents (par. 80). It is a peculiar position

given the fact that in some of the earlier cases (TGI, Sweden and API) very strong arguments

were given in favor of ‘general presumption’ not to disclose.

In his opinion, Advocate General Villalón focused on how the exception relating to

commercial interests of the parties should be applied. He suggested that given the specific

nature of merger proceedings they were providing a certain ‘complexion’ for interpretation of

the said exception (par. 38 of the opinion) and the provisions of the Merger Regulation

139/2004 should be used as a tool for interpretation of the exception. Given the fact that the

relation between the Commission and the investigated party in the merger proceedings was

such that that other party was placed in a ‘vulnerable’ position, Advocate Villalón has given

strong arguments for non-disclosure (par. 50). He sympathized with the view of the

Commision and referring to the TGI ruling per analogiam argued that documents referring to

merger proceedings shall be governed by a general presumption of non-disclosure (par. 69).

It is submitted that this argument is of great merit. The principle of ‘widest possible access’ in

this case is clashed against a different protection regime (merger proceedings). The solution

proposed by Advocate Villalón (using the Merger Regulation as a tool of interpretation for the

1049/2001 Regulation) allows to avoid the need to choose primacy of one regulation over the

other. At the same time, it is not as strict a solution as the one proposed in Bavarian Lager

where – in short – it was ruled that the very presence of an individual interest effectively

trumps the exercise of the right to access.

Conclusions

The amount of case-law relating to the exceptions to the right of access to documents is vast

and in the paper I have presented but a sample of the most important judgments which made

their way to the European courts in the past couple of years. In the report published by the in

2011 it was stated that “the Commission remains convinced that the revision of the

Regulation should build on what has been achieved in the past ten years.”25 Undoubtedly, the

judicature has provided some interpretation on implementation of the exceptions (again, in

this paper I have covered just some of them, with making very little reference to e.g. Article 4

paragraph 1 of the Regulation). It is debatable however, whether the recent case-law has

followed the principle of ‘widest possible access’ with its many references to ‘general

presumptions’ in favor of the EU institutions. The recent case of MyTravel is however on the

progressive side of the judgments on interpretation of the 1049/2001 Directive. It remains to

be seen how the discussed appeal cases (and many more) will be decided. The point is, that

after a decade since the Regulation has been implemented, as I hope I have shown, many

questions referring to the interpretation of the exceptions to the right of access remain

unanswered. Indeed, the Regulation in its current form does not provide much guidance as to

how some more problematic requests should be handled. There have been issues relating to

particularly vast files, documents originating from the Member States, relation to other pieces

of EU legislation governing handling of data and weighing public interest against the interest

of parties interested in the documents. The influx of requests for documents may have

indicated that the Regulation governing access to documents is maybe too vague in itself. One

has also to remember that the national standards for access to documents have not been

harmonized (the Regulation does not apply to national rules on documents held by the

Member States) and with the 1049/2001 Regulation in force the EU effectively operates on a

‘double standard’. In any event, it has to be remembered that a great majority of the cases is

handled without any problems and the number of disclosed documents steadily rises26. Given 25 Report from the Commission on the application in 2010 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, p.826 See: Green Paper - Public Access to Documents held by institutions of the European Community – a review”

this and the recent calls for legislative amendment of the regulation27, there is no doubt that

the principle of ‘widest possible access’ has to be maintained.

Bibliography:

Craig, De Burca – EU Law: Text, Cases and Materials, 5th editition, Oxford, 2011

Paivi Leino – „Just a little sunshine in the raing: the 2010 case law of the European

court of Justice on access to documents”, Common Market Law Review, 48/2011

How wide is ‘the widest possible’? Judicial interpretation of the exceptions to the right

of access to official documents revisited.” – Common Market Law Review 46/2009

Green Paper - Public Access to Documents held by institutions of the European

Community – a review

Proposal for Regulation of the European Parliament and of the Council regarding

public access to European Parliament, Council and Commission documents

Report from the Commission on the application in 2010 of Regulation (EC) No

1049/2001 regarding public access to European Parliament, Council and Commission

documents

27 See: Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents