DOCUMENTS WHICH RELATE TO A POSSIBLE COMMENCEMENT OF INFRINGEMENT PROCEEDINGS FALL WITHIN THE MANDATORY "PUBLIC INTEREST" EXCEPTION TO THE CODE OF CONDUCT ON PUBLIC ACCESS TO DOCUMENTS; THE COMMISSION MUST INDICATE WHY REQUESTED DOCUMENTS FALL WITHIN THIS EXCEPTION BY REFERENCE TO CATEGORIES OF DOCUMENTS BUT NEED NOT DO SO IN RESPECT OF EACH INDIVIDUAL DOCUMENT.
This press release is an unofficial document solely for the use of the press. For further information or for a copy of the judgment please contact Tom Kennedy, telephone 4303-3355 or Ursula Smyth, telephone 4303-3366 or send a fax to 4303-2500.
In 1991, the Irish authorities announced a plan to build a visitors' centre at Mullaghmore in the Burren National Park in the west of Ireland. They proposed to use structural funds for the project. Following objections by the WWF (World Wide Fund for Nature), among others, the Commission opened an investigation into the project but concluded that it did not infringe Community environmental law and that there was no obstacle to structural funds being allocated to assist the project. An action for annulment of that Commission decision brought jointly by the WWF (UK) and An Taisce was unsuccessful.
Subsequently counsel for WWF (UK) (the applicant) wrote to the Commission to request access to all Commission documents relating to its examination of the Mullaghmore project and particularly to the examination of the question whether structural funds might be used for it. By letters dated 17 November 1994 and 24 November 1994 officials of DG XI (Environment) and DG XVI (Regional Policies) informed the applicant of the rejection of that request.
The applicant took issue with those refusals and, in accordance with the procedure laid down in the "Code of Conduct on public access to Commission and Council documents", Council for the applicant submitted confirmatory applications to the Secretary General of the Commission.
On 2 February 1995 the Secretary General wrote to the applicant reconfirming the refusal of the requests made to the Directorates General XI and XVI, and reiterating the grounds relied upon by those departments.
The applicant therefore applied to the Court of First Instance to annul the decision contained in that letter.
Following declarations contained in the Treaty on European Union (Maastricht Treaty) and at the European Summits held in Birmingham and Edinburgh in 1992 the Council and the Commission drew up the Code of Conduct referred to above and undertook to implement it before 1 January 1994. To that end the Commission adopted Decision 94/90 in which the Code was formally adopted and the full text of the Code was set out in an Annex to that Decision.
The Code is based on the principle that "the public will have the widest possible access to documents held by the Commission and the Council" and defines the term "document" as well as setting out the rules governing the procedure for making requests for documents and the procedure to be followed if the institution proposes to reject such a request.
Finally, the Code of Conduct lays down the grounds upon which an institution may reject a request for access to documents. In particular it is provided that "The institutions will refuse access to any document where disclosure could undermine the protection of the public interest" [including court proceedings, inspections and investigations]. It is also provided that they may refuse access "in order to protect the nstitution's interest in the confidentiality of its proceedings".
The Court first considered the legal force to be attributed to Decision 94/90 and secondly the scope of the exceptions provided for in the Code. The Court found that by adopting the decision the Commission had indicated to citizens who wished to gain access to documents which it held that their requests would be dealt with according to the procedures, conditions and exceptions laid down for the purpose. Although Decision 94/90 was, in effect, a series of obligations which the Commission had voluntarily assumed for itself on an internal basis, it was nevertheless capable of conferring on third parties legal rights which the Commission was obliged to respect.
As for the scope to be given to the exceptions contained in the Code of Conduct the Court stated that the ground for refusing a request for access to Commission documents should be interpreted in a way which would not make it impossible to attain the objective of transparency required by the declarations of the Member States and the European Council.
The Court found that the Code of Conduct contained two categories of exception to the general principle of citizens' access to Commission documents and that since the first category was drafted in mandatory terms, it followed that the Commission was obliged to refuse access to documents falling under any one of the exceptions contained in that category once the relevant circumstances were shown to exist.
By way of contrast, under the second category, the Court found that the Commission enjoyed a margin of discretion which enabled it, if necessary, to refuse a request for access to documents relating to its deliberations. The Court however emphasized that the Commission had to exercise that discretion by striking a genuine balance between, on the one hand, the interest of the citizen in obtaining access to those documents and, on the other hand, its own interest in protecting the confidentiality of its deliberations.
The Court considered that the distinction between those two categories of exception in the Code of Conduct was explained by the nature of the interest which the two categories sought respectively to protect. The first category, comprising the ?mandatory exceptions', protects the interest of third parties or of the general public whereas, in the second category, relating to the internal deliberations of the institution, it is the interest of the institution alone which is at stake.
In the light of those observations the Court examined whether the documents relating to an investigation into a possible breach of Community law satisfied the conditions which had to be met for the Commission to be able to rely on the public interest exception, in the first category.
In that regard, the Court found that the confidentiality which the Member States were entitled to expect of the Commission in such circumstances warranted, under the heading of protection of the public interest, a refusal of access to documents relating to investigations which might lead to an infringement procedure, even where a period of time had elapsed since the closure of the investigation.
The Court then pointed out that the Commission could not confine itself to invoking the possibility of opening an infringement procedure as justification, under the heading of protecting the public interest, for refusing access to the entirety of the documents identified in a request made by a citizen. The Court stated that the Commission was required to indicate, at the very least by reference to categories of documents, the reasons for which it considered that the documents detailed in the request which it received were related to the possible opening of an infringement procedure. It should indicate to which subject-matter the documents related and particularly whether they involved inspections or investigations relating to a possible procedure for infringement of Community law.
Following an examination of the terms of the contested decision and the letters from DG XVI and DGXI the Court found that the Commission had failed to state the reasons for its decision as required by Article 190 of the Treaty, and, in particular, it had failed to specify which of the exceptions in the Code of Conduct it relied upon and to identify the category or categories into which the documents fell. The contested decision was therefore annulled.