Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The European Court of Justice held that EU institutions may rely on a general presumption that disclosure of pleadings provided by them in cases before the European courts would undermine the purpose of court proceedings. Under that presumption, access can be refused without an individualized assessment of the documents. However, the Court emphasized that the presumption no longer exists once a case has been closed, and a similar presumption relating to interference with investigations and audits is also inappropriate after judgment has been delivered in infringement proceedings.
This case analysis was contributed by Right2Info.org.
The Association de la Presse Internationale (API), a non-profit organization of journalists based in Belgium, applied to the European Commission (the Commission) for access to the written pleadings lodged by the Commission before the European Court of Justice (ECJ) in a number of cases. The request was made under article 6 of Regulation No 1049/2001. Article 4 of the Regulation exempts certain documents from public disclosure and the Commission refused access to documents in most of the cases, arguing that those cases were either still pending (or related to a pending case), or the cases involved information that could be exempted from disclosure because it protected court proceedings or the purposes of investigations and audits (paras. 12-15). These cases had been brought in accordance with article 258 of the Treaty on the Functioning of the European Union, which allows the European Commission to initiate infringement proceedings against member states failing to comply with EU law. In the first stage of these proceedings, the Commission delivers a “reasoned opinion on the matter after giving the state concerned the opportunity to submit its observations. If the state concerned does not comply […], the [Commission] may bring the matter before the [ECJ]”.
The Commission maintained that there was no public interest in the disclosure of the documents that could override the need for their exemption from disclosure under article 4 (para. 16). The Commission based its decision on a general presumption that disclosing the pleadings would undermine court proceedings and did not carry out a specific assessment of each document.
The API brought an application to the General Court, which had held that the Commission had been justified in not providing access to documents of the pending cases (para. 26), but that the Commission had not been justified in refusing access in respect of the other cases (para. 31). The case went on appeal to the Grand Chamber, where the Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden and the United Kingdom were all granted permission to intervene in respect of the cases that were relevant to their countries (paras. 32-33).
The Grand Chamber had to determine whether the European Commission should disclose the information sought by API.
With reference to its judgments in Sweden and Turco v Council and Commission v Technische Glaswerke Ilmenau, the Court found that an institution can sometimes refuse access to a document based on a general presumption that applies to a certain category of documents (para. 74). The Court highlighted that pleadings are inherently more related to its own judicial activities than to the Commission’s administrative activities (para. 77). Further, it found that one of the purposes of the Regulation was to exclude judicial activities from the right of access to documents and that the Court of Justice itself is not subject to the transparency obligations of the Regulation (para. 79).
The Court stressed that allowing access to pleadings by the Commission could influence the defence of its position before the Court and would undermine the principle of equality, as non-institutional parties would not be subject to a similar obligation to disclose (para. 86). Additionally, exposing pleadings to public debate could disrupt the serenity of judicial proceedings and expose them to external pressure (para. 93). Furthermore, disclosing the pleadings would undermine the rules of procedure of EU courts, which generally only entitle parties to a dispute to receive communication of procedural documents (paras. 97-98).
Taking into consideration all of the above, the Court allowed for a general presumption that disclosure of such pleadings by European institutions would undermine judicial proceedings, allowing for non-disclosure under article 4(2) (para. 94). It held that such disclosure would “flout the special nature of that category of documents and would be tantamount to making a significant part of the court proceedings subject to the principle of transparency” (para. 95). It added that “the effectiveness of the exclusion of the Court of Justice from the institutions to which the principle of transparency applies, […], would be largely frustrated”. (para. 95)
The Court held that the general presumption that disclosure of pleadings undermine court proceedings no longer exists after the proceedings in question have been closed. While disclosure in these cases could potentially undermine other proceedings, that risk depends on the similarity between the two cases. Partial disclosure may therefore be possible, necessitating a specific examination of the documents (para. 131).
The Court also addressed the issue of the exception under article 4(2) relating to the protection of the purpose of inspections, investigations and audits. The Court found that the Commission could not continue to rely on a presumption regarding interference with the procedures after the judgment had been delivered in infringement proceedings. Since an amicable settlement between the parties was no longer possible post-judgment (although future proceedings could take place), an individualized examination of these documents was required (para. 121).
Finally, the Court found that there was no need to examine the content of the documents to decide if overriding public interest in disclosure existed. It noted that it is only if the particular circumstances of the case substantiate a finding that disclosure is especially pressing that public interest can override the protection of the documents. Since the API had not demonstrated such a pressing need, there was no appropriate basis for establishing that public interest was capable of prevailing over the reasons justifying non-disclosure (para. 156).
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