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ClientEarth Communications

27th October 2017

Rule of law
Access to Justice for a Greener Europe

EU court enforces transparency obligations in Commission administrative procedures

An exception to the EU institutions’ transparency obligations allows them to refuse public disclosure of documents in order to protect their decision-making process. The institutions often rely on this exception to withhold all documents related to an ongoing administrative procedure. In this case, the European Court of Justice relies on the Aarhus Convention to confirm that, when it comes to environmental information, only documents that reveal the decision-makers’ deliberations can be kept secret. All other documents, whether or not they relate to the administrative procedure in question, should be disclosed. Analysis by Maximillian Kemp.

The case concerned a request for information made to the Commission under Regulations 1049/2001 and 1367/2006 by Saint-Gobain, a company involved in the world glass market. Saint-Gobain had asked for access to information supplied by the German Government to the Commission relating to certain of its installations on the German territory for the purposes of calculating the amount of free emission allowances, for the period of 2013 to 2020, under the emissions trading scheme set up by Directive 2003/87.

In January 2013, the Commission only partially granted the request, providing only the information already made publicly available by Germany as well as non-essential information in the requested Excel sheet. The refusal to disclose was based on the first subparagraph of Article 4(3) of Regulation 1049/2001, as the Commission argued that full disclosure of the requested information would permit the public, and in particular the undertakings concerned, to raise questions or make criticisms in respect of the information communicated by the Member States, which it considered was liable to seriously undermine and delay its decision-making process. Germany supported this line of argument when consulted by the Commission under Article 4(5) of Regulation 1049/2001. The Commission further considered that there was no overriding public interest in disclosure under Article 4(3) of Regulation 1049/2001, essentially arguing that Saint-Gobain’s interest was purely private, and that the priority interest was to ensure that decisions were taken without any external interference and to preserve the climate of trust between the Commission and the German authorities.

Saint-Gobain brought an action for annulment of the Commission’s decision, which was rejected by the General Court. Saint-Gobain appealed the General Court’s decision, on the grounds that it had misinterpreted Article 4(3) of Regulation 1049/2001 by applying it too strictly and not considering that an overriding public interest in disclosure existed, and that it had also misapplied Article 4(5) of that Regulation. Indeed, Saint-Gobain argued that the General Court had failed to properly take into account Regulation 1367/2006 and the Aarhus Convention in its interpretation of Regulation 1049/2001, as Article 6(1) of the Aarhus Regulation specifically calls for a strict interpretation of the exceptions laid down in Article 4 of Regulation 1049/2001, which furthermore has no counterpart in the Aarhus Convention itself.

The Court of Justice, having rejected the Commission’s arguments relating to the admissibility of the request, moved on to examining whether the General Court had erred in law in its interpretation of Article 4(3) of Regulation 1049/2001. It first addressed the General Court’s interpretation of the scope of Article 4(3), according to which the use of “which relates to the matter” in the exception established in this provision was intended to expand the exception beyond documents drawn up as part of the decision-making process, to also include documents directly relating to the matters dealt with in that process.

The Court considered that this confused the concepts of decision-making process and administrative procedure. Indeed, it found that such an interpretation would allow a European Union Institution to refuse access to any document, including documents containing environmental information, held by that institution, in so far as that document directly relates to matters dealt with as part of an administrative procedure pending before that administration. The Court thus held that the exception only related to the decision-making itself, and not the entire administrative procedure which led to the decision.

The Court then addressed the General Court’s holding that the administrative procedure in question “merited greater protection” as the disclosure of documents relating to it could create a risk of negative repercussions on the decision-making process through the possibility that interested parties could influence the procedure. Here, it held that the General Court had failed to give proper consideration to the requirement of strict interpretation of Article 4(3), since the risk referred to was not sufficient to prove that disclosure of these documents would seriously undermine the decision-making process of the institution concerned. It further pointed out that Regulation 1367/2006 created no obligation for the Commission to examine or respond to public reactions following disclosure of environmental information relating to an administrative procedure, and that therefore the Commission’s argument that such disclosure would jeopardise compliance with time limits was not credible.

Lastly, the Court reminded that, although the General Court’s finding that the Commission’s administrative activities do not require as extensive an access to documents as that concerning the legislative activity of a Union institution was correct, this had no bearing on the fact that Regulation 1049/2001 nevertheless applied, as it covered all documents held by an institution, whether drawn up or received by it and in its possession, in all areas of Union activity. Consequently, having found Saint-Gobain’s first ground of appeal to be founded, the Court of Justice considered it unnecessary to examine the second plea relating to Article 4(5) of Regulation 1049/2001. The Court opted to deliver a final judgment on the case by upholding the appeal and annulling the contested decision.

The Court’s decision in this case must be applauded. The General Court’s interpretation of Article 4(3) of Regulation 1049/2001 failed to give due account to the Aarhus Convention and to the obligation to demonstrate a non-hypothetical risk that the decision-making process would be seriously undermined. Indeed, the notion that disclosure of documents should be refused because a European Institution’s decision would be potentially delayed and its impartiality impaired by public scrutiny demonstrates a fundamental lack of understanding of the underlying rationale for transparency, as this opportunity to raise questions or make criticisms is the very purpose of Regulation 1049/2001.