A large number of public houses in the United Kingdom are bound by exclusive purchasing agreements which require them to obtain their supplies of beer from particular breweries. The Bavarian Lager Company considered that United Kingdom legislation laying down requirements relating to the purchase of beer constituted a measure having an equivalent effect to a quantitative restriction on imports. It therefore lodged a complaint with the Commission.
The Commission decided, following an investigation, to initiate a Treaty infringement procedure against the United Kingdom and to send a reasoned opinion to it. However, that reasoned opinion was never sent, because the United Kingdom announced a proposal to amend the legislation at issue.
The Commission then informed the Bavarian Lager Company that the infringement procedure had been suspended and would be brought to a close as soon as the amended legislation entered into force.
The Bavarian Lager Company requested a copy of the "reasoned opinion" in accordance with the code of conduct concerning public access to Council and Commission documents. The Commission refused that request, on the basis that disclosure of the reasoned opinion could undermine the protection of the public interest, in particular Commission inspection and investigation tasks.
The Bavarian Lager Company applied to the Court of First Instance for annulment of that decision.
The Court noted first of all that the Community legislation concerning access to Commission documents lays down the principle that citizens should have the widest possible access to information. Thus, the Court has previously held that any person may ask for access to any unpublished Commission document without being required to give a reason for that request.
However, the code of conduct concerning public access to Council and Commission documents lays down some exceptions to that general principle Ä in particular for the protection of the public interest, for example in relation to inspections and investigations.
The Court held that that exception could not apply to all documents linked to an infringement procedure. The protection of the public interest warranted solely a refusal of access to documents relating to investigations which could lead to such a procedure.
The Court found that it was wrong to classify the document to which the Bavarian Lager Company sought access as a "reasoned opinion". It was in fact a draft reasoned opinion drawn up by Commission staff in order to be sent to the United Kingdom. The Commission had suspended its decision to send a reasoned opinion to the United Kingdom and that document was, in the end, never signed by the Commissioner responsible or communicated to that Member State. It therefore remained a purely preparatory document.
The preparatory nature of the document at issue and the fact that, when access to it was requested, the Commission had suspended its decision to deliver the reasoned opinion, led the Court to conclude that the infringement procedure against the United Kingdom was still at the stage of inspection and investigation. According to the Court, the disclosure of documents relating to the investigation stage, during the negotiations between the Commission and the Member State concerned, could undermine the proper conduct of the infringement procedure and the duty of confidentiality owed by the Commission. Genuine cooperation and a climate of mutual confidence between the Commission and that Member State are essential in order for negotiation to take place between the parties and for the dispute to be settled.
The Court therefore concluded that the protection of the public interest warrants the refusal of access to a preparatory document relating to the investigation stage of an infringement procedure.
NB: an appeal, limited to points of law, may be brought before the Court of Justice of the European Communities against this decision of the Court of First Instance within two months of its notification.
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