Article 42 - Right of access to documents
Key facts of the case:
Appeal — Access to documents of the EU institutions — Regulation (EC) No 1049/2001 — Regulation (EC) No 1367/2006 — Impact assessment report, draft impact assessment report and opinion of the Impact Assessment Board — Legislative initiatives in respect of environmental matters — Refusal to grant access — Disclosure of the documents requested in the course of the proceedings — Continuing interest in bringing proceedings — Exception relating to the protection of the ongoing decision-making process of an EU institution — General presumption.
Outcome of the case:
In view of the foregoing, I propose that the Court should:
7) Recitals 2 and 6 of that regulation state:
‘(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
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52) I recall that Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’) lay down the right of access to documents of the institutions. Article 1 of Regulation No 1049/2001 provides that the purpose of the regulation is to define the principles, conditions and limits governing that right of access. Since access to documents of the institutions is the general rule, all exceptions to that rule must be interpreted strictly. ( 10 )
73) The Member States were conscious of the importance of that principle when the Treaty of Maastricht was adopted and called on the Commission to submit a report to the Council in early course on measures designed to improve public access to the information available to the institutions. ( 31 ) This was followed by the insertion of Article 255 TEC in the Treaty of Amsterdam, now Article 15 TFEU, and, especially, the recognition expressed in Article 42 of the Charter, which establishes the right of access to documents of the institutions as a fundamental right.
75) In addition, we have seen that, under the provisions of Regulation No 1049/2001, the Commission retains the right to refuse access to its documents if it shows in a specific case that there is a risk that its decision-making processes would be seriously undermined and if it determines that there is no overriding public interest in disclosure of those documents. However, the decision to apply a general presumption of confidentiality in a case such as the present case would, in actual fact, upset the balance of the system established by that regulation. Indeed, the Commission could avoid having to justify its refusal to grant access to the documents specifically and individually and base its refusal on considerations of a general nature. Furthermore, it would be for the person seeking access to the documents of the Commission to prove that such an overriding public interest existed. That, as a matter of fact, would result in the reversal of the burden of proof, all of which seems to be incompatible with Article 42 of the Charter, with the case-law of the Court cited above in this Opinion, and with the intention of the EU legislature as regards legislative documents.
