Case T-362/08
IFAW Internationaler Tierschutz-Fonds gGmbH
v
European Commission
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the carrying out of an industrial project in an area protected under Directive 92/43/EEC – Documents originating from a Member State – Objection on the part of the Member State – Partial refusal of access – Exception relating to the economic policy of a Member State – Article 4(5) to (7) of Regulation No 1049/2001)
Summary of the Judgment
1. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State
(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))
2. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the public interest – Documents originating from a Member State
(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a) and (5))
3. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Duty to state reasons – Scope
(Art. 253 EC; European Parliament and Council Regulation No 1049/2001, Arts 4, 9 and 11(2))
4. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Obligation to grant partial access to data not covered by the exceptions
(European Parliament and Council Regulation No 1049/20011049/2001, Art. 4(1) to (3) and (6))
1. Where an institution’s decision refusing access to a document originating in a Member State corresponds to the latter’s request pursuant to Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is within the jurisdiction of the European Union judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal was validly based on the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the relevant Member State. It follows that, by virtue of the application of Article 4(5) of that regulation, the review carried out by the EU judicature is not limited to a prima facie review. The application of that provision does not therefore prevent a complete review being carried out of the institution’s refusal decision, which must, in particular, respect the obligation to give reasons and be based on the substantive assessment made by the Member State concerned of the applicability of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001.
The carrying out of a complete review by the European Union judicature of the applicability of the substantive exceptions at issue does not necessarily imply that the institution, as author of the decision, is or is not entitled to carry out a complete review in regard to the objection raised by the Member State pursuant to Article 4(5) of Regulation No 1049/2001. Even if that institution refused access to a document originating in a Member State after finding, on the basis of a prima facie review that, in its view, the grounds of objection submitted by the Member State were not put forward in a way that was not manifestly improper, review by the European Union judicature is not, by virtue of the application of Article 4(5) of Regulation No 1049/2001, limited to a prima facie review of the applicability of the substantive exceptions laid down in Article 4(1) to (3) since it is reviewing the applicability of those exceptions on the basis of the substantive assessment carried out by the Member State concerned.
(see paras 86-88)
2. With regard to the extent of the review of the legality of a decision of refusal of access to a document by the EU judicature, in connection with the application of one of the substantive exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the institution, as author of the decision, must be recognised as enjoying a broad discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by those exceptions could undermine the public interest. Such a discretion is based, in particular, on the fact that such a refusal decision is of a complex and delicate nature which calls for the exercise of particular care and that the criteria set out in Article 4(1)(a) of Regulation No 1049/2001 are very general.
That reasoning is also valid if, in the case of a refusal on the part of an institution to grant access to a document originating from a Member State pursuant to Article 4(5) of Regulation No 1049/2001, the application of a substantive exception provided for in Article 4(1)(a) of that regulation is based on the Member State’s assessment. Assessment of the question whether disclosure of a document undermines the interests protected by such substantive exceptions can be among the political responsibilities of that Member State. In such a case, the Member State must enjoy a broad discretion, in the same manner as the institution.
The European Union judicature’s review of the legality of such a decision must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers.
(see paras 104-105, 107)
3. In the case of a decision refusing access to a document on the basis of an exception provided for in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the statement of reasons must explain how access to that document could specifically and effectively undermine the interest protected by that exception. However, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document, whether or not it is a sensitive document within the meaning of Article 9 of that regulation, without disclosing the content of the document and, thereby, depriving the exception of its very purpose.
The need to abstain from referring to matters which would indirectly undermine the interests which those exceptions are specifically designed to protect is emphasised in particular by Article 11(2) of Regulation No 1049/2001. That provision states that if a document, whether or not it is sensitive within the meaning of Article 9 of that regulation, is the subject of a reference in the register of an institution, such reference must be made in a manner which does not undermine the protection of the interests set out in Article 4 of that regulation.
(see paras 110-112)
4. Article 4(6) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is not inseparably connected with Article 4(1) to (3). Although the specific examination of the exceptions referred to in Article 4(1) to (3) is indeed an essential condition for deciding whether to grant partial access to the document at issue, examination of such a possibility does not concern the conditions for the application of the exceptions at issue. The requirement of such an examination flows from the principle of proportionality. In the context of Article 4(6) of Regulation No 1049/2001, it must be considered whether the aim pursued in refusing access to a document may be achieved even if only the passages which might harm the protected public interest are blanked out.
The conditions for the application of Article 4(6) of Regulation No 1049/2001 are thus examined separately, and at a different stage of the analysis, from the conditions for the application of the exceptions provided for in Article 4(1) to (3).
(see paras 147-148)