Access to Public Information
Bubon v. Russia
Closed Expands Expression
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The European Court of Justice held that when an EU institution refuses to provide access to a document, it is under a duty to explain how access to that document might actually and specifically undermine the interest protected by the exception in Regulation 1049/2001 upon which the institution relies. The requirements for protecting the decision-making process are less acute when the process is closed, rather than ongoing.
This case analysis was contributed by Right2Info.org.
For the purpose of an action for compensation, tour operator MyTravel asked the European Commission (EC) for access to certain internal documents on the control of concentrations (mergers and acquisitions). These documents included, inter alia, the advice by the Commission’s Legal Service – an internal department within the Commission responsible for providing legal advice to the Commission and its services, and representing the Commission in all court cases – as well as a report and other working papers prepared by the Commission’s working group following the judgment in Airtours v. Commission. The Commission refused to provide the documents on the grounds of the protection of the decision-making process and the protection of court proceedings and legal advice. The General Court upheld the Commission’s decision. Sweden appealed the General Court’s ruling to the Court of Justice of the European Union (CJEU).
The Court began by restating that the right of public access to documents of the institutions was related to the democratic nature of those institutions, and that any exception to this right must be interpreted and applied strictly. It is for the institution that refuses to provide information to explain “how disclosure of a document could specifically and effectively undermine the interest invoked”.
Firstly, concerning the exception for protecting the decision-making process, Article 4(3) of the Regulation No 1049/2001 draws a distinction between cases where the decision-making process is in progress and cases where it has ended. In the latter case, there are fewer requirements for protecting the decision-making process, and only documents “containing opinions for internal use as part of deliberations and preliminary consultations within the institution” can be refused. The refusal must be based on specific reasons, having regard to the actual content of the documents and to the risk of seriously undermining the institution’s decision-making process.
In this context, the Court found that the Commission failed to substantiate, using detailed evidence, its decision that disclosure of the report would seriously undermine a decision-making process that had already been closed.
Secondly, concerning the exception for protecting legal advice (Article 4(2) of Regulation No 1049/2001), and the Commission’s argument that disclosure of its Legal Service’s opinion could undermine “the lawfulness of a final decision,” the Court stated that openness was an important factor in conferring greater legitimacy on the institutions in the eyes of European citizens. The fact that the Legal Service might find itself obliged to defend before the judicature the legality of a decision about which it had issued a negative opinion cannot justify an exception to the transparency required by Regulation No 1049/2001.
The Court referred the case back to the General Court.
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