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 requiring an applicant to resubmit his request for information after the requested institution’s definitive refusal to provide access, is contrary to the objective of the two-stage process established by Regulation No 1049/2001, namely, to guarantee swift and straightforward processing of applications for access to documents.
This case analysis was contributed by Right2Info.org.
Internationaler Hilfsfonds (IH), a non-governmental organisation active in the field of humanitarian aid, asked the European Commission (Commission) for documents relating to the contract signed between IH and the Commission in 1999. The Commission provided access to some documents but rejected IH’s application in relation to other documents. The applicant applied for full access to the documents, but the Commission refused. The Commission re-examined its position following the draft recommendation of the European Ombudsman. The Commission agreed to provide access to five of the documents which it had previously refused to disclose. It maintained its initial decision with regard to the rest of the documents.
In its definitive decision, the Ombudsman found that the Commission’s failure to give valid reasons justifying its refusal to disclose the documents constituted maladministration. Following the Ombudsman’s definitive decision, the applicant applied for full disclosure. In a decision dated February 14, 2005 (the Commission’s decision), the Commission informed the applicant that it “does not intend to place other documents [except for the ones already provided] at [his] disposal”.
The applicant brought an action for annulment of the Commission’s decision before the Court of First Instance (CFI), but the CFI dismissed it as inadmissible. The applicant applied to the European Court of Justice (ECJ).
The ECJ disagreed with the CFI’s conclusion that the contested measure was not a definitive position of the Commission and could not be a subject of an action for annulment.
The ECJ pointed out that Regulation 1049/2001, specifically Articles 7 and 8, provided for a two-stage procedure, which enabled the institution to re-examine its position before taking a definitive refusal decision that could be the subject of an action before the EU courts. It aimed to guarantee swift and straightforward processing of applications for access to documents and prioritized a friendly settlement of disputes.
The Court further held that the Commission’s decision constituted a definitive refusal to disclose all the documents requested by IH. According to the Court, “[the Commission’s decision] brought to an end a long series of successive steps taken by IH over approximately three years, (…) seeking to obtain access to the documents relating to the contract and including several applications by it to that end”.
According to the Court, the Commission could not reasonably claim that IH should have made a new application and waited until a further refusal from the Commission before challenging it. The Commission made clear, in its detailed opinion and by disclosing five documents in the case instituted before the Ombudsman, that it had examined IH’s application in detail and “had clearly and definitively adopted its position with regard to the refusal of access to the documents sought”. Requiring the applicant to re-submit the application would also be contrary to the aim of the two-stage procedure established by the Regulation.
The ECJ concluded that the contested measure constituted a measure open to challenge and referred the case back to the lower court.
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