New case note on access to documents case related to the EU’s emissions trade scheme

“On the Administration of Pollution: How Much “Space to Think” May the EU Claim?”

When can an institution plausibly argue that something is decision-making, and not “mere” administration? And more importantly, how does this influence EU bodies’ legitimate claim to a “space to think” that shields them from transparency? In this newly published case note, Maarten Hillebrandt and Liisa Leppävirta argue that the EU courts still have a long way to go to clarify these questions.

Background

Case C-60/15P, Saint-Gobain v Commission [2017], ECLI:EU:C:2017:540

Some time ago the Court of Justice delivered a judgment about access to a document that Germany submitted to the EU as part of a procedure to determine emission quotas as part of the EU’s emission trade scheme. On the request of Germany, the Commission refused access to parts of the documents, arguing that disclosure would undermine the decision-making process. That argument eventually did not stand up to scrutiny in court: the judges of the Court of Justice found that the document pertained to the administrative, rather than the decision-making process, and that the fact that the document came under the Aarhus rules on access to environmental information meant the space to refuse access was further limited.

Documents related to environmental policy which form part of an administrative procedure cannot be construed as seriously undermining an ongoing decision-making process in the sense of Regulation 1049/2001, Article 4(3), first subparagraph, when read in conjunction with the second sentence of Article 6(1) of Regulation 1367/2006. Consequently, this exception to immediate public disclosure as foreseen by Regulation 1049/2001 does not apply. Yet what exactly constitutes an administrative document, and whether different types of administrative documents are subject to different levels of protection from transparency largely remain questions to be answered even after this judgment.

The case note can be accessed here.

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