On 28 September, the General Court delivered its judgment in the access to documents case of Professor Leino-Sandberg against the European Parliament. The final judgment of this multiple-year, multiple-judgment litigation saga is discussed by Anastasia Karatzia.
The 2022 judgment of the General Court in the case of Leino-Sandberg v Parliament (T-421/17 RENV) signals the end to the dispute between Professor Leino-Sandberg and the European Parliament. The latter had refused to provide access to Decision A(2015) 4931, which was addressed to Emilio De Capitani and dealt with trilogue negotiations. The case went from the General Court (Case T-421/17) to the Court of Justice (Case C-761/18P) and back to the General Court which eventually adjudicated the substance of the matter in its judgment of 28 September 2022, which is the subject of this Op-Ed. The General Court found that the European Parliament misinterpreted and misapplied the exception by which an EU institution can refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice (‘litigation privilege’) (Article 4(2) of Regulation 1049/2001). The contested decision of the European Parliament was therefore annulled.
Before examining the judgment, we should briefly provide the background to how the case circled back to the General Court. As mentioned above, the case concerns Professor Leino-Sandberg’s request to access Decision A(2015) 4931 (the requested document) by which the European Parliament provided Mr De Capitani with partial access to two documents relating to trilogue discussions. At the time of the Professor’s request, Mr De Capitani had already brought an action for annulment of the requested document and had published the document online by uploading it onto a website. In January 2017, the European Parliament refused access to Professor Leino-Sandberg. In response to a confirmatory application by the Professor, the European Parliament repeated its refusal in its Decision A(2016) 15112 of 3 April 2017 (the contested decision). The reason behind the refusal was that the requested decision was being contested by Mr De Capitani before the General Court and the judicial proceedings were still in progress. Thus, disclosure of the document would undermine the protection of court proceedings according to Article 4(2) of Regulation 1049/2001 and the public interest relied on by the applicant could not justify disclosure of the document. In July 2017, Professor Leino-Sandberg contested Decision A(2016) 15112.
A little more than a year later, the General Court ruled on the case brought by Mr De Capitani, annulling the European Parliament’s refusal to provide him with full access to the requested document. Subsequently, in September 2018, the General Court ordered the dismissal of the Leino-Sandberg case on the ground that there was no longer a need to adjudicate on the applicant’s action for the annulment of Decision A(2016) 15112, because the requested document had already been published on the internet by a third party. On appeal, the Court of Justice set aside the Order of the General Court and referred the case back to it for adjudication on the substance. A commentary of the Court of Justice’s judgment can be found in a previous post in EU law live [reproduced on the Open Government in the EU Blog].
The above timeline leads us to the current judgment, where the General Court examined the substance of the applicant’s case. The applicant alleged an error of law, a manifest error of assessment, and failure to state reasons with regard to: (a) the applicability and correct application of the exception for the protection of court proceedings referred to in Article 4(2) of Regulation 1049; (b) the application of the criterion of overriding public interest laid down in Regulation 1049; and, (c) the application of Article 4(6) of Regulation 1049 on partial disclosure. The General Court found that the European Parliament had, indeed, misapplied the exception regarding the protection of court proceedings, and so it did not examine the other two arguments.
The General Court follows established case-law according to which any exception to citizens’ right to access EU documents must be interpreted and applied strictly in order ‘to give the fullest possible effect to the right of public access to documents of the institutions’. The judgment is an example of the narrow interpretation of the statutory exception for the protection of court proceedings.
In the judgment, the General Court follows established case-law according to which any exception to citizens’ right to access EU documents must be interpreted and applied strictly in order ‘to give the fullest possible effect to the right of public access to documents of the institutions’ (paras 22-30; see also Case C-506/08 P Sweden v MyTravel and Commission). The General Court’s reasoning is based on the premise that if an EU institution decides to refuse access to a document: (a) it must explain how disclosure could specifically and effectively undermine the interest protected by the exception upon it is relying; (b) the risk of this happening must be reasonably foreseeable and not purely hypothetical; and (c) it is the institution’s role to weigh the interest to be protected against the public interest in the document being made accessible. The examination required for dealing with an application for access to a document must provide all the reasons behind the decision, including for all exceptions that the institution relied on to refuse access.
The judgment itself is an example of the narrow interpretation of the Article 4(2) exception for the protection of court proceedings. The applicant’s argument examined by the General Court was twofold. She argued that the EP wrongly determined that the exception was applicable to the requested document and that, even if the exception was applicable, the contested decision makes a manifestly incorrect interpretation and application of the exception, vitiated by the European Parliament’s failure to state the reasons behind its decision (para 31).
The General Court rejected the applicant’s argument that the European Parliament failed to state the reasons behind its decision. The obligation to state reasons is an essential procedural requirement and does not cover the question of whether the reasons given were correct, which goes to the substantive legality of the contested measure (para 44). According to the judgment, the applicant’s argument relating the institution’s failure to give reasons for its decision concerned the correctness of the reasons given and was therefore rejected (see paras 37-47). The Parliament’s statement contained the reasons for the rejection: in a few words, the Parliament stated that the requested document had a clear and relevant link to pending proceedings before the General Court in Case T-540/15, and it was considered a crucial document because it defined the scope of the Parliament’s defence. This was enough for it to ‘tick the box’ of giving reasons for its decision.
However, the General Court did go into the substance of the Parliament’s decision when examining the alleged misinterpretation and misapplication of the exception for the protection of court proceedings as stated in Article 4(2) of Regulation 1049 (paras 48-55). To do so, it checked the Parliament’s decision against the test that governs the application of the exception for the protection of court proceedings. The exception covers not only documents drawn up solely for the purposes of court proceedings, but also documents which if disclosed are liable to compromise the equality of the parties and thus jeopardise a fair trial. This ‘extended’ scope of the exception applies only in so far as the documents have a relevant link with the dispute pending before the CJEU and reveal the position of the institution concerned in contentious issues raised during the court proceedings relied on (para 40; Case T-796/14 Philip Morris v Commission).
EU institutions wishing to rely on the exception for the protection of court proceedings must shown that disclosure will have a real impact on the balance between the parties to court proceedings and thus affect the potential for a fair trial.
It is against this ‘extended’ scope of application of the exception for the protection of court proceedings that the General Court examined the contested European Parliament decision in the case at hand, given that the requested document was not drawn up solely for the purposes of specific court proceedings. Although the requested document had a clear link with the dispute between Mr De Capitani and the European Parliament that was pending at the time before the CJEU, the current case was different from previous cases on the application of the exception in question. In the previous Philip Morris cases (see above and Case T-18/15), the contested documents were disclosing the internal positions of the EU institution, thus compromising the institution’s defence. The disclosure was also compromising the principle of equality of arms because the other party to the dispute could not be obliged to disclose similar information on internal matters relating to the case. By way of contrast, in the Leino-Sandberg case the requested document did not contain internal positions (paras 52-55) but rather it was an administrative position communicating the Parliament’s final position to refuse full disclosure to the document and allow partial disclosure. It did not contain any of the internal positions of the institution relating to the adoption of that decision, and therefore it could not oblige the institution to defend itself against internal positions and choices. As such, the Parliament’s defence in the De Capitani case could not have been compromised had it provided access to the requested decision to the applicant in the current case. The requested document fell outside the scope of the exception of Article 4(2) of Regulation 1049, and the Parliament could not rely on that exception to refuse the applicant access to that document.
Through applying established case-law to the dispute at hand, the General Court is in line with the strict interpretation that must be given to the Article 4(2) of Regulation 1049 exceptions to the fundamental right to access EU documents established by Article 15(3) TFEU and Article 42 of the Charter. EU institutions wishing to rely on the exception for the protection of court proceedings have to be mindful that it is not enough for the requested document to simply have a link with the proceedings or to relate somehow with the subject matter of a case pending before the CJEU. Instead, it must be shown that disclosure will have a real impact on the balance between the parties to court proceedings and thus affect the potential for a fair trial.
It can be said that a different outcome would have been paradoxical given that the contested decision was already online and therefore in the public realm at the time of the contested decision. After all, the Parliament’s initial argument in the first case before the General Court was that the requested document was published in its entirety on the internet by the addressee, leaving the applicant without a legal interest in bringing proceedings. Certainly, according to the Court of Justice in the appeal of the first judgment, ‘[a] document disclosed by a third party cannot be regarded as constituting an official document, or as expressing the official position of the Institution’ and cannot free the EU institution from its obligation to provide access unless the EU Institution ‘unequivocally endorses that document as a document that emanated from it and expressed its official opinion’ (para 46). This does not change the reality of the matter: had the General Court found that disclosure was mandated for the protection of court proceedings, this would have meant that the European Parliament justifiably denied access to a document that the applicant (or anyone) could have searched for and found online.
Anastasia Karatzia is senior lecturer in EU law at the University of Essex.
This blog previously appeared on EU Law Live.
