Case T-471/08

Ciarán Toland

v

European Parliament

(Access to documents – Regulation (EC) No 1049/2001 – Audit report on the parliamentary assistance allowance – Refusal of access – Exception relating to protection of the purpose of inspections, investigations and audits – Exception relating to protection of the decision-making process)

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 – Protection of the purpose of inspections, investigations and audits – Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

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 decision-making process – Conditions

(European Parliament and Council Regulation No 1049/2001, Art. 4(3))

1.      The third indent of Article 4(2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, had to be interpreted in such a way that that provision, the aim of which is to protect the purpose of inspections, investigations and audits, applies only if disclosure of the documents in question may endanger the completion of those activities.

Admittedly, the various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought has been completed.

Nevertheless, to allow that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided would make access to those documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities. Such a solution would be contrary to the objective of guaranteeing public access to documents relating to any irregularities in the management of financial interests, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.

The exception to the right of public access to documents based on the protection of inspections, investigations and audits may be declared to be applicable to an audit report the disclosure of which could jeopardise inspections or investigations which were being conducted, for a reasonable period, on the basis of its content. However, that is not always the case where the decision applying it makes no mention of any specific inspection or investigation or of any other administrative checks which were ongoing at the time of that decision and which might have constituted the implementation of the immediate actions recommended in that report and that in the part concerned with the rejection of the request for access to the report, merely makes reference in an abstract manner to the need to allow the administration a reasonable period of time for the immediate implementation of the proposals contained in that report and merely mentions various initiatives undertaken for the purpose of a regulatory and/or legislative reform of the rules governing parliamentary assistance.

(see paras 43-45, 47, 51-52)

2.      The application of the exception based on the protection of the decision-making process, in Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, requires it to be established that access to the document in question drawn up by the institution for its internal use in question was likely, specifically and actually, to undermine the interest protected by the exception, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical.

In addition, in order to be covered by that exception, the decision-making process must be seriously undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution.

An audit report concerning the parliamentary assistance allowance compiled by the Parliament’s internal audit service pursuant to Article 86 of the Financial Regulation, is a document drawn up by the institution for its internal use. The application of the exception based on the protection of the decision-making process to that report does not, however, contain any tangible element which would allow the conclusion to be drawn that that risk that the decision-making process would be undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical. In particular, the contested decision makes no mention of the existence, on the date on which it was adopted, of any acts undermining, or attempting to undermine, the ongoing decision-making process, or of objective reasons on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if that report were disclosed. In that connection, the fact that the use by the Members of Parliament of the financial resources made available to them is a sensitive matter followed with great interest by the media cannot constitute in itself an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined, without calling into question the very principle of transparency intended by the EC Treaty. Likewise, the alleged complexity of the decision-making process did not constitute in itself a specific reason to fear that disclosure of the report would seriously undermine that process.

(see paras 70-72, 78-81)