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

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.

The case concerns the interpretation of article 4, paragraph 5 of the EU access to documents law (Regulation 1049/01), which states that member states, when submitting a document to the EU institutions, may request the institutions not to disclosure this document, relying on the exception grounds mentioned under article 4, paragraphs 1-3. The judgment does not come as a surprising, as it confirms earlier case law of both the General Court (court of first instance) and the Court of Justice (whose rulings are final) which held that member states do not enjoy “boundless discretion” to refuse access to their own documents but must instead offer a reasoned refusal on the basis of the EU access to documents law, and that ultimate responsibility for the decision to refuse access lies with the EU institution to which the document was submitted.

Transparency of member state-submitted EU documents remains one of the strongest controversies in European transparency law. Already in 1997, member states attempted to passify the issue with a declaration (number 35) attached to the Amsterdam Treaty which created a separate status for such documents. The courts however acted to salvage the substance of the right of access to documents by interpreting this separate status as a procedural manner rather than an absolute prerogative. The recent court case demonstrates how certain member states continue to struggle with this line of settled case law.

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