Archive for the ‘Case law’ Category

Court further strengthens EU institutions’ prerogative in determining access to member state-submitted documents

Wednesday, May 3rd, 2017

A new court case further strengthen’s the EU institutions’ hands in granting access to a member state’s documents against its will.

In a case against the Commission, initiated by France, the General Court confirmed that the Commission acted lawfully by granting public access to a series of documents submitted to it by the member state. Although France had justified its request for non-disclosure with the invocation of an exception contained in the EU access to documents law, the Commission judged this exception prima facie not to apply to said documents. France brought a judicial protest against this action, which led to the court’s judgment of April, which goes along with the Commission’s decision to disclose the documents against France’s will.

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New publication: recent case law impacts on the Council’s ability to negotiate in secrecy

Monday, May 25th, 2015
Recent cases at the Court of Justice on Regulation 1049/01 on public access to Parliament, Council and Commission documents set new limits to confidentiality in the Council’s legislative and international negotiations, as Vigjilenca Abazi and Maarten Hillebrandt argue in their recent case note article entitled “The legal limits to confidential negotiations: Recent case law developments in Council transparency: Access Info Europe and In ‘t Veld”, published in the Common Market Law Review.

ACELG scholar comments on recent access to documents case (Breyer v Commission)

Friday, March 20th, 2015

330px-1475-ri-112-Patrick_Breyer_PiratenOn 27 February, the General Court of the EU delivered another ruling on the EU right of public access to documents. In case T-118/12 (Breyer v Commission), German Pirate Party member Patrick Breyer (pictured) took action against the Commission’s decision not to grant it access to documents, saying that these documents, being held by the Court, fell outside of the scope of the access law. While the Court ended up ruling otherwise, ACELG PhD Eljalill Tauschinsky points at an element of the case that is problematic nonetheless: the Court’s decision to make Breyer bear half of his own costs, to punish him for publishing documents pertaining to the court case on his website, thereby allegedly inviting readers to comment negatively and exert pressure on the Commission in an ongoing case. While a comparable situation occurred over 15 years ago in the Swedish Journalist Association case, Tauschinsky argues that Breyer was punished worse for a comparable breach.

The comment, posted on the ACELG blog, can be accessed here.

 

Processstukken inzake inbreukprocedures Commissie niet zonder meer uitgesloten van publieke toegang

Thursday, March 12th, 2015

Cross-post van het Expertisecentrum voor Europees Recht (ECER), Ministerie van Buitenlandse Zaken.

 

De Commissie mag een verzoek om openbaarmaking van de processtukken van een lidstaat in een infractieprocedure niet automatisch afwijzen omdat het stukken van het EU-Hof zijn. Het besluit om stukken vrij te geven moet worden genomen op basis van de bijzondere regeling in de Eurowob. Dat heeft het EU-Gerecht bepaald.

Het gaat om het arrest van het Gerecht van 27 februari 2015 in de zaak T-188/12, Patrick Breyer tegen de Commissie.

Breyer verzocht de Commissie om vrijgave van de door Oostenrijk bij het EU-Hof ingediende processtukken (memories) in de infractieprocedure die de Commissie tegen Oostenrijk had gevoerd over de implementatie van de dataretentierichtlijn ( zaak C-189/09).

Voor een uitgebreide bespreking van dit arrest zie de ECER-website. -MH

 

 

Sophie in ‘t Veld MEP writes op-ed on lack of transparency in the EU

Monday, September 29th, 2014

SONY DSCSophie in ‘t Veld, a Dutch member of the European Parliament for the Democrats ’66 / ALDE party, laments the apparent lack of EU transparency in an op-ed on European news website Euractiv.com. “Trust in government and politics, both national and European, is at an all-time low, and the key to restoring trust is transparency.”

In her opinion article, likens the EU’s mentality to that of Sir Humphreys, the fictive British Prime Minister’s advisor in BBC hit series Yes, Minister: “Open government, Prime Minister. Freedom of information. We should always tell the press freely and frankly anything that they could easily find out some other way.” According to In ‘t Veld, it is apparent that the EU is developing towards a parliamentary democracy where citizens take ownership, and where transparency and accountability have a central role. The EU’s tradition of diplomatic and secretive decision making, she argues,  is outdated. “Sorry Sir Humphrey, you are a man of the past. Transparency is the future.”

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European Court of Justice upholds judgement in Access Info Europe appeal

Wednesday, October 23rd, 2013

The Court of Justice of the EU dismisses in full the Council’s appeal against an earlier judgement in the much publicised Access Info Europe case.

 

Pam_Helen_Council_FinalThe long awaited judgement of the Court of Justice of the EU (CJEU) in the Access Info Europe appeal was finally handed down last week, on 17 October. After losing a case against Access Info Europe (AIE) in front of the lower General Court, the Council appealed. The CJEU now has found that the General Court’s judgement was correct and must therefore be upheld. In total, three separate pleas in law filed by the Council were refuted.

 

On its website, AIE director Helen Darbishire commented: “If the Council applies this ruling to all similar documents, this would finally provide a similar level of transparency at the EU level as one would normally find in national legislative processes.” On Twitter, AIE spoke in equally superlative terms, saying that it was “More than satisfied! The decision we hope will open the door to a more participatory and transparency EU!” The Council, meanwhile, has not given the case any attention on its news homepage.

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General Court Orders Partial Disclosure in Access to ECHR Accession Negotiation Documents Case

Monday, September 16th, 2013

Law professor offers constitutional arguments for the disclosure of important Council documents. The General Court orders the Council to reconsider the scope of partial disclosure, but only on procedural grounds.

By Maarten Hillebrandt

besselink-leonard-fdr-hoogleraar-fotojeroenoerlemansOn Thursday 12 September, the General Court gave its judgment in Besselink v Council (T-331/11). In January 2011, Leonard Besselink (pictured), then Professor of Constitutional Law at Utrecht University, requested access to the documents relating to the EU’s negotiations to accede to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In these documents, the Council discussed the strategic and substantive instructions to the Commission, which negotiated the accession on the EU’s behalf. The final draft of this draft accession treaty is currently going through the process of ratification. However, the Council refused access to the documents in which it instructed the Commission, on the basis of Article 4(1), third indent, of Regulation 1049/2001 on public access to EU documents. This article states that access must be refused where disclosure would undermine the public interest with regard to international relations.  (more…)

AG Opinion in Access Info Europe appeal: the transparency saga continues

Tuesday, May 21st, 2013

logoLast week, Advocate General Cruz Villalón delivered his opinion in the Council’s appeal against the General Court’s Access Info Europe judgement of 2011. (For a background to this case, see an earlier post on this website.) AG Cruz Villalón’s opinion, which can be accessed here, marks another move in the longstanding debate about the role of transparency in the Council and, more broadly, in legislative procedures. The AG takes a principled stance in his opinion, which leads to an uncompromising, at times tough attitude towards the arguments put forward by the Council and its supporting intervenors (Czech Republic, Greece, Spain). In paras 59 and 60 of the opinion, the AG brings the crux of the matter down to a single question, which he immediately answers:

Fundamentally, the question at issue is therefore this: does the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’ constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001?

The answer to this question must, in my view, be in the negative.

He then goes on to substantiate this position in the light of transparency’s contribution to the overarching principle of democracy.

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Hearing in Appeal Access Info Europe Case Sees Parties Putting Forward Their Views About Transparency in Process

Monday, February 25th, 2013

The Council of the European Union defends its appeal in Luxembourg.  On Thursday 21 February, the litigating parties in the Access Info Europe case appeal convened at the Court of Justice of the European Union in Luxembourg for a hearing. This marks the next step in this case, since the the Council contested the General Court’s ruling by bringing an appeal.

The GC’s 2012 judgement in Access Info Europe caused a stir by affirming the NGO’s assertion that citizens need to be able to attribute policy positions to member states in order to participate meaningfully in European democracy. The practice by the Council to disclose arguments put forward without revealing their originating member states had been in place for some years before AIE challenged it. It is seen by the Council as an acceptable compromise between the requirements of democratic participation and those of effective decision-making. Ironically, Access Info Europe was in the process of mapping member state positions in the reform of the access to documents regulation for a report that it was writing, when it stumbled upon this practice.

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Top Secret Intelligence in Europe: A Tipping Point in Luxembourg?

Monday, October 22nd, 2012

This short article was originally posted on the blog of the Amsterdam Centre for European Law and Governance (ACELG).

Kadi is back in Luxembourg and with a vengeance! The timing is interesting both for the case itself and more generally for highlighting the use of secret intelligence and evidence to justify detention and other sanctions.

By Deirdre Curtin

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