Article 11 - Freedom of expression and information
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Aviation transport – Regulation (EU) No 376/2014 – Follow-up of occurrences endangering aviation safety – Article 15 – Confidentiality of details relating to those occurrences – Scope of that confidentiality – Charter of Fundamental Rights of the European Union – Article 11 – Freedom of expression and of information – Freedom of the media – Request for disclosure of information on the downing of an aircraft flying over eastern Ukraine, made by undertakings operating in the media sector – Article 52(1) – Limitation – Conditions.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
Article 15 of Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007, as amended by Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018, read in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter of Fundamental Rights of the European Union
must be interpreted as meaning that information held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety, within the meaning of Article 2(7) of Regulation No 376/2014, as amended, is subject to a confidentiality regime the consequence of which is that neither the public nor even a media undertaking has the right to have access to that information in any form.
43 The referring court takes the view, moreover, that the various confidentiality regimes in question must be interpreted in the light of the right to freedom of expression and information that Article 11 of the Charter and Article 10 ECHR guarantee generally to everyone, and of the rights and the specific role of ‘watchdog’ that the second of those articles confers on the press, as the European Court of Human Rights recalled, inter alia, in its judgment of 8 November 2016, Magyar Helsinki Bizottság v. Hungary (CE:ECHR:2016:1108JUD001803011).
44 In the second place, the referring court asks, in essence, what consequences are to be drawn from the possible incompatibility of the Law on Aviation with Regulation No 376/2014, interpreted in the light of Article 11 of the Charter. In that regard, it takes the view that, if the special rules on the prohibition of disclosure laid down by that law were to be regarded as incompatible with Regulation No 376/2014 and, consequently, as inapplicable, the lawfulness of the decision by which the Minister for Infrastructure and Water Management refused the request of the RTL undertakings should be assessed in the light of the Law on Government Information (Public Access). Even though the Law on Government Information (Public Access) is not intended to ensure the transposition or application of secondary EU legislation and even though the latter does not generally harmonise the right of public access to administrative documents within the Member States, that law should nevertheless also be interpreted, to the greatest extent possible, by taking account of the confidentiality regime established by Regulation No 376/2014, as is, moreover, noted in recital 33 of that regulation.
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46 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 15 of Regulation No 376/2014, read in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter, must be interpreted as meaning that information held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety, within the meaning of Article 2(7) of that regulation, is subject to a confidentiality regime the consequence of which is that neither the public nor even a media undertaking has the right to have access to that information.
48 Furthermore, all acts of the European Union must be interpreted, as far as possible, in such a way as not to affect their validity and in conformity with primary law as a whole, in particular the provisions of the Charter. Thus, if a provision of such an act is open to several interpretations, preference should be given to the interpretation which renders that provision consistent with primary law rather than to the interpretation which would lead to its being incompatible with that law (judgments of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 77, and of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraph 70).
65 In the third and last place, having regard to the referring court’s questions concerning the legal consequences of such an interpretation of Article 15 of Regulation No 376/2014 for the right to freedom of expression and information, enshrined in Article 11 of the Charter, in the specific case where the person who requests access to information benefiting from the confidentiality regime laid down in that article is a media undertaking, the following should be stated.
66 The Court has already recalled that acts or provisions of secondary EU law which are liable to have an adverse impact on the exercise of the right to freedom of expression and information enshrined in Article 11 of the Charter, and thus to place a limitation on such an exercise, must be interpreted in the light of that right (see, to that effect, judgment of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraphs 47 and 70).
67 In the present case, all three of the Council of the European Union, the Commission and the Netherlands Government, in their written observations, have expressed the view that, while placing a limitation on the exercise of the right to freedom of expression and information enshrined in Article 11 of the Charter, Article 15 of Regulation No 376/2014 satisfies the conditions laid down by Article 52(1) of the Charter for such a limitation to be accepted.
68 In that regard, Article 52(1) of the Charter provides that limitations may be placed on the exercise of rights and freedoms guaranteed by the Charter on condition that (i) those limitations are provided for by law, (ii) they respect the essence of the rights and freedoms at issue, and (iii) in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
71 As regards, secondly, the requirement that the essence of the right at issue be respected, it should, first of all, be recalled that Article 15 of Regulation No 376/2014 makes information that is collected or held by the competent aviation safety authorities pursuant to that regulation subject to a general and strict confidentiality regime. On that basis, that Article 15 is liable to impair the right to freedom of expression and information enshrined in Article 11 of the Charter in so far as that latter article generally allows everyone, in paragraph 1 thereof, and more specifically the media, in paragraph 2 thereof, to receive information.
85 In the light of all the foregoing considerations, the answer to the first and second questions is that Article 15 of Regulation No 376/2014, read in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter, must be interpreted as meaning that information held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety, within the meaning of Article 2(7) of that regulation, is subject to a confidentiality regime the consequence of which is that neither the public nor even a media undertaking has the right to have access to that information in any form.
