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The European Court of Justice held that if a member state refuses consent for a document held by an EU institution to be released under Article 4(5) of the Regulation, it must base the refusal on one of the exceptions under the Regulation. The Court reasoned that prior consent under the Regulation is not a discretionary right of veto but a form of assent confirming that none of the grounds for exemption from disclosure under Article 4(1) to (3) is present.
This analysis was contributed by Right2Info.org.
In April 2000, the Commission of European Communities issued an opinion to Germany allowing for an industrial project on the Mühlenberger Loch site, an internationally protected area under the Ramsar Convention. The project consisted of an enlargement of a Daimler Chrysler Aerospace Airbus GmbH factory and the reclamation of part of the Elbe estuary in order to extend a runway.
In December 2001, the International Fund for Animal Welfare (IFAW), a non-governmental organization dedicated to animal welfare and nature conservation, asked the Commission for access to various documents the Commission had received in connection with the project, including correspondence with Germany, the City of Hamburg, and the German Chancellor.
The Commission took the view that, under Article 4(5) of Regulation No 1049/2001 (the Regulation), it was obliged to obtain the agreement of the member state concerned before disclosing the documents in question. Subsequently, Germany requested the Commission not to disclose them. The Commission rejected IFAW’s request in March 2002, invoking Article 4(5) of the Regulation.
IFAW sought annulment of the Commission’s decision before the Court of First Instance. The Court dismissed the claim, arguing that Article 4(5) of the Regulation gave member states a discretionary right to deny disclosure. Sweden subsequently appealed that decision to the Court of Justice.
Article 4(5) of the Regulation provides that when a request for a specific document originating from a member state is made, that document should not be disclosed without the state’s prior agreement.
According to the Court, prior consent is not a discretionary right of veto but a form of assent confirming that none of the grounds for exemption from disclosure under Article 4(1) to (3) is present. All documents held by EU institutions are within the scope of the Regulation, including those originating from the member states. Access to all documents is governed by the provisions of the Regulation, including the exception provisions. To interpret Article 4(5) differently would potentially exclude from disclosure an important class of documents that form the basis of the Community decision-making process.
Therefore, according to the Court, if an institution receives a request for access to a document originating from a member state, that member state must substantiate its denial to disclose upon one of the exceptions in the Regulation – otherwise, the state cannot request that a document is not released invoking Article 4(5). Germany failed properly to substantiate its request for non-disclosure to the Commission.
The Court set aside the judgment of the Court of First Instance and annulled the Commission’s decision refusing disclosure.
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