Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
Closed Expands Expression
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The European Court of Justice (ECJ) held that when a person is denied access to information due to a Member State’s objection, the General Court (EGC) of The Court of Justice of the European Union (CJEU) has a duty to consult disputed documents in camera to assess the validity of the refusal. The International Fund for Animal Welfare (IFAW), an environmental and animal welfare NGO, requested access to various documents received by the European Commission in connection with the examination of an industrial project. The Commission disclosed all documents requested except the German Chancellor’s letter because the German authorities said disclosure would undermine the protection of the public interest relating to international relations and economic policy. The Court found that the General Court was under an obligation to ensure “judicial protection for the person who ha[d] made the request” by consulting the documents originating from a Member State to determine whether “access to the document could validly be refused on the basis of the exceptions” claimed.
This case analysis was contributed by Right2Info.org.
The International Fund for Animal Welfare (IFAW), a non-governmental organisation active in animal protection and nature conservation, repeatedly requested from the European Commission (the Commission) access to documents submitted by the German authorities to the Commission in relation to the examination of the Mühlenberger Loch industrial project.
The Commission disclosed all documents, namely eight documents originating from the City of Hamburg and the Federal Republic of Germany, except the German Chancellor’s letter because the German authorities had objected to disclosure of that document. The German authorities had stated that disclosure of the letter would undermine the protection of international relations and economic policy (Article 4(1)(a) of Regulation 1049/2001), and the protection of the Commission’s decision-making process (Article 4(3) of the Regulation 1049/2001). The Commission accepted the reasons put forward by the German authorities, adding that “it was compelled to accept the outcome of the consultation process and to refuse access to the German Chancellor’s letter on the basis of the exceptions claimed by the German authorities and the reasons they gave”.
IFAW brought an action to annul the Commission’s decision, which was dismissed by the General Court. IFAW appealed the ruling to the Court of Justice of the European Union (the Court).
Regarding the IFAW’s first argument that the Commission was required to carry out an exhaustive assessment of the reasons for objections put forward by Germany, the Court relied on its previous judgment in Sweden v. Commission.
It reiterated that the Commission had to examine whether the Member State (i) based its objection to disclosure on the substantive exceptions under Article 4(1) to (3) of Regulation No 1049/2001, and (ii) gave proper reasons for its position (para. 62). However, the Commission did not have to conduct “a review going beyond the verification of the mere existence of reasons referring to the exceptions”. The Court stressed that “[t]o insist on such an exhaustive assessment could lead to the institution being able, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection (…) of the Member State from which the document originates”.
Nevertheless, the Court accepted IFAW’s second argument, that the General Court should have consulted and reviewed the Chancellor’s letter (para. 68). The General Court was under an obligation to ensure “judicial protection for the person who has made the request” by consulting the documents originating from a Member State in camera.The Court concluded that by “not having itself consulted that letter, the General Court was not in a position to assess in the specific case whether access to the document could validly be refused on the basis of the exceptions”.
The Court referred the case back to the General Court.
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