Case T-250/08

Edward William Batchelor

v

European Commission

(Access to documents – Regulation (EC) No 1049/2001 – Documents exchanged in the course of the assessment of the compatibility with Community law of measures taken with respect to television broadcasting activities – Refusal to grant access – Exception relating to the protection of the decision-making process – Exception relating to the protection of the purpose of inspections, investigations and audits)

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 – Power of the Member State to request the institution not to disclose documents – Procedural implications

(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (5))

2.      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 – Power of the Member State to request the institution not to disclose documents – Jurisdiction of the courts of the European Union

(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))

3.      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

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

4.      European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Requirement that the institution examine the documents specifically and individually – Scope

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

5.      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 – Protection of the decision-making process

(Art. 10 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(3), second para., and (5))

6.      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; Council Directive 89/552, Art. 3a)

1.      The extent of the duty to state reasons of an institution which receives a request for access to documents from the authorities of a Member State made in accordance with the provisions of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents depends on the definition of the legal consequences attaching to a Member State’s objection, on the basis of Article 4(5) of Regulation No 1049/2001, to the disclosure of a document.

In that connection, it should be observed that to interpret Article 4(5) of Regulation No 1049/2001 as conferring on the Member State a general and unconditional right of veto, so that it can oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by a Community institution, simply because it originates from that Member State, is not compatible with the objective of improving transparency in the decision-making process in the European Union.

Thus, the Member State concerned is obliged to state reasons for any objection it may have, by reference to the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where a Member State fulfils that obligation, the institution concerned must refuse the request for access, but must discharge its own obligation to state reasons, by explaining in its decision the reasons relied on by that Member State to show that one of the exceptions provided for under Article 4(1) to (3) of Regulation No 1049/2001 applies.

It follows from those considerations – which are intended to safeguard the objective of Regulation No 1049/2001 while attempting to attribute to Article 4(5) thereof a legislative content which is separate and distinct from that of Article 4(4) – that, after stating that the objection entered by a Member State sets out the reasons for which, in the view of that State, the documents concerned are covered by an exception to the right of access, the institution concerned need not set out its own assessment of the merits of that reasoning.

(see paras 44-47)

2.      Where a Member State relies on the option available to it under Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents to request that a document originating from that State is not to be disclosed without its prior agreement and puts forward reasons, based on the exceptions set out in Article 4(1) to (3) thereof, it is within the jurisdiction of the Courts of the European Union to verify, where a person to whom the institution has refused to grant access so requests, that that refusal was validly based on those exceptions, despite the fact that the refusal results from the assessment of those exceptions made, not by the institution itself, but by the Member State concerned. In addition, from the point of view of the person concerned, the intervention of the Member State does not detract from the Community nature of the decision that is subsequently addressed to him by the institution in response to the request he has made for access to a document in its possession.

(see para. 67)

3.      Documents sent to an institution by an external person or body in order to be the subject of an exchange of news with the institution in question, do not fall within the scope of the second paragraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament and Commission documents, which is intended to protect certain types of documents drawn up in the course of a procedure, the disclosure of which, even after that procedure has terminated, may undermine the decision-making process of the institution concerned.

First, although the documents referred to by that provision must contain ‘opinions for internal use as part of deliberations and preliminary consultations with the institution concerned’, to hold that a document is intended for internal use by an institution simply because that institution is the addressee would render that condition meaningless, because it would be satisfied by any document received by an institution. Secondly, such an interpretation fails to have regard for the fact that deliberations or preliminary consultations must, according to that provision, take place ‘within the institution’.

Far from being the outcome of mere grammatical construction, those findings are consistent with the principle that the exceptions to the right of public access to documents in Article 4(3) of Regulation No 1049/2001 must be construed strictly. Furthermore, those findings presume the effectiveness of the first subparagraph of Article 4(3) of that regulation and, consequently, the logic dictating the need for two separate subparagraphs in that provision, the first concerning the period up to the completion of the decision-making process and the second concerning also the period after such completion.

If the second subparagraph of Article 4(3) of Regulation No 1049/2001 were construed as concerning every document sent to an institution by an external sender which contains an ‘opinion’ in the broadest sense of that word and which could give rise to a reply, in the view that those factors combine to make up a ‘consultation’ for the purposes of that provision, the effect would be that the second subparagraph of Article 4(3) would cover as wide a category of ‘documents’ as the first subparagraph. Given that those categories of documents would be protected in identical conditions – if, that is to say, their disclosure would seriously undermine the decision-making process – the first subparagraph would become redundant, since the second covers the period both before and after the completion of that process.

(see paras 68-70, 73-76)

4.      The examination required for the purposes of processing a request for access to documents submitted on the basis of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception is not sufficient to justify application of that exception. Such application may, as a rule, be justified only if the institution has previously assessed whether access to the document would specifically and effectively undermine the protected interest. On the other hand, the risk of a protected interest being undermined must, if it is to be relied upon, be reasonably foreseeable and not purely hypothetical.

(see para. 78)

5.      The second subparagraph of Article 4(3) and (5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents must be interpreted as precluding a Member State from relying on its own unwillingness to cooperate with the Commission, in the event that a document were to be disclosed under that regulation, as a valid basis for the claim that the decision-making process of the institution concerned would be seriously undermined.

To acknowledge a declaration, by which a Member State manifests its unwillingness to cooperate with the institution if the latter allows access to a document, as evidence that the decision-making process would be seriously undermined for the purposes of the second subparagraph of Article 4(3) of Regulation No 1049/2001 would amount to giving the Member States discretionary power in that matter or would, at least, make the policy of access to documents implemented by that regulation conditional upon the relevant national policies. That would not be compatible either with the system of access to documents established by Regulation No 1049/2001 or with the Member States’ obligation under Article 10 EC to cooperate with the Commission in good faith.

(see paras 80-81)

6.      The exception to the right of public access to documents laid down in the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents concerning the protection of the purpose of inspections, investigations and audits, is not applicable to documents exchanged in the course of the examination by the Commission of the compatibility with Community law of measures adopted by a Member State concerning the television broadcasting activities under Article 3(a) of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

Compliance with Community law, which is the objective of the investigation carried out by the Commission, is not jeopardised if a Member State does not wish to cooperate in the assessment as to whether the measures which it adopts or intends to adopt are compatible with Community law. In such circumstances, those measures will not be examined by the Commission, they will not benefit from mutual recognition, and the freedom to provide services guaranteed by primary law will apply in full.

(see paras 91-92, 95)