Case C‑280/11 P, Access Info Europe

Note on positions of Member States revision Regulation 1049/2001 subject to public access

>> By this appeal, the Council sought to have set aside the judgment of 22 March 2011 in Case T‑233/09 Access Info Europe v Council [2011] ECR II‑1073. The General Court annulled the Council’s decision of 26 February 2009 refusing to let Access Info Europe have access to certain information contained in a note of 26 November 2008 from the Secretariat General of the Council to the Working Party on Information, set up by the Council, concerning stating the positions of the Member States with regard to the revision of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.
By its first ground of appeal, the Council submitted that the General Court disregarded the balanced approach laid down both in primary law (Article 207(3) EC and Article 255 EC, applicable ratione temporis) and secondary law (recital 6 to Regulation No 1049/2001 and the first subparagraph of Article 4(3) thereof) between, on the one hand, the wider right of access to documents relating to the legislative activity of the institutions and, on the other, the need to preserve the effectiveness of the decision-making process. In particular, the General Court  construed the first subparagraph of Article 4(3) in such a way as to attribute undue and excessive weight to the transparency of the decision-making process, without taking any account of the needs associated with the effectiveness of that process.

The Court first of all stressed that  Regulation 1049/200 reflected the intention expressed in  Article 1(2) TEU of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions were taken as openly as possible and as closely as possible to the citizen. The Court held that the public right of access to documents of the institutions was related to the democratic nature of those institutions (see Case C‑506/08 P Sweden v MyTravel and Commission [2011] on which I wrote this post).

The Court held that to that end, Regulation No 1049/2001 was designed to confer on the public as wide a right of access as possible to documents of the institutions. However, that right was according to the Court none the less subject to certain limitations based on grounds of public or private interest.  Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly. (see Case C‑266/05 P Sison v Council [2007], on which I wrote this post).

The Court found that if the institution concerned decided to refuse access to a document which it had been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception  upon which it was relying. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Case C‑506/08 P Sweden v MyTravel and Commission [2011]).

The Court held that, far from disregarding the balance between the principle of transparency and the preservation of the effectiveness of the Council’s decision-making process, the General Court,  examined the substance of all the arguments put forward by the Council to justify the application, in the circumstances, of the exception referred to in the first subparagraph of Article 4(3) of Regulation 1049/2001. Contrary to the assertions made by the Council, the Court found that the General Court did take account of the needs associated with the effectiveness of the decision-making process: as it carried out a detailed examination of the arguments adduced by the Council to justify the application, in the circumstances, of the exception concerning the protection of the Council’s decision-making process.

The Council also alleged that the General Court’s reasoning was inconsistent with the case-law of the Court of Justice which allows the institutions to rely on general considerations in order to refuse to disclose certain categories of document. The Court reiterated that in order to justify refusing access to a document, it was not sufficient, in principle, for the document to fall within an activity or an interest referred to in Article 4 of Regulation No 1049/2001, as the institution concerned must also explain how access to that document could specifically and actually undermine the interest protected by an exception laid down in that provision. The Court stresssed that it was nevertheless open to that institution to base its decisions in that regard on general presumptions which applied to certain categories of document, as similar general considerations were likely to apply to requests for disclosure relating to documents of the same nature (see Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010], on which I wrote this post).

The Court held that in the present case, even if it were to be taken as established that the Council had argued at first instance that it was entitled to refuse access to a document, such as the requested document, by relying on a presumption based on the considerations   concerning the need to protect the delegations’ room for manœuvre during preliminary discussions on the Commission’s legislative proposal, it was clear, first, that, the General Court examined those considerations and that it concluded that they were not a sufficient basis for application of the exception under the first subparagraph of Article 4(3) of Regulation No 1049/2001. Consequently, the Council could according to the Court not reasonably argue that it was entitled to refuse access to the requested document by relying on a presumption based on such considerations. The Court thus found that the arguments seeking to show that the General Court did not take into account the reasons why the Council had considered that those general considerations were applicable to the requested document were ineffective.

Text of judgment