19 Access to documents
| (35212)
12444/13
COM(13) 515
| Commission Report on the application in 2012 of Regulation (EC) No. 1049/2001 regarding public access to European Parliament, Council and Commission documents
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| Legal base | —
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| Document originated | 10 July 2013
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| Deposited in Parliament | 19 July 2013
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| Department | Ministry of Justice
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| Basis of consideration | EM of 30 July 2013
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| Previous Committee Report | None
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| Discussion in Council | None foreseen
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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The document
19.1 The European Commission published its report
on the application in 2012 of Regulation regarding public access
to European Parliament, Council and Commission documents[42]
(the Regulation) on 16 July 2013.
19.2 In 2012, 17,940 new documents were added to
the public register of documents required under Article 11(1)
of the Regulation. None of those documents (whether created or
received by the Commission) were "sensitive" as defined
by Article 9(1). Article 9(3) provides that sensitive documents
may only be added to the Register with the consent of the originator.
19.3 The report notes that initial applications for
access in 2012 fell. The number of applications fell from 6,447
in 2011 to 6,014, while the number answered under the Regulation
fell from 6,055 to 5,274. The breakdown of applications by area
of interest shows that the Commission Secretariat General received
the highest number of applications followed by the Directorate
General for Health and Consumers. Enquires from academics remained
the largest single category.
19.4 The geographical breakdown of applications remained
largely consistent with previous years. In 2012, persons or bodies
in Belgium submitted the highest number of applications at 21.85%
followed by Germany on 14.04% and the UK on 10.17% of the total.
The proportion of requests originating from the UK has risen from
7.24% in 2010 when, in addition to Belgium and Germany, France
and Italy also submitted proportionately more applications.
19.5 The percentage of initial applications in response
to which the documents were disclosed in full fell to 74.48% in
2012 (compared with 80.20 % in 2011). However, despite this fall
nearly three quarters of requests are granted in full. The percentage
of cases in which applications were granted in full after an initial
refusal increased slightly (18.75% compared to 14.58% in 2011).
The proportion of such applications where the original decision
was upheld in its entirety also went up (56.88% compared to 42.36%
in 2011). However, the percentage of cases in which partial access
was granted after an initial refusal fell (24.38% compared to
43.05% in 2011).
19.6 The main reason for refusing initial applications
was the protection of the purpose of inspections, investigations
and audits (25.32% of total exception use compared to 21.90% in
2011). This was very closely followed by the protection of the
Commission's decision-making process (25.15% of total exception
use against 25.73% in 2011). These two exceptions were also the
most commonly cited in confirmatory applications in 2012 (45.10%
and 15.69% of total exception use respectively, compared to 32.68%
and 19.33% in 2011).
19.7 The Ombudsman closed 18 investigations of complaints
against the Commission in 2012: ten with a critical or further
remark, and eight without further actions.
19.8 The Court of Justice delivered three judgments
on appeal in 2012, in Commission v Agrofert Holdings a.s.,[43]
Commission v Editions Odile Jacob SAS,[44]
and IFAW Internationaler Tierschutz-Fonds v Commission.[45]
The first two judgments concern competition policy and in the
last, which we set out in further detail below, the Court gave
an interpretation of the assessment of the objections raised by
a Member State to the disclosure of documents originating from
it. The UK did not intervene in any of these cases.
19.9 The General Court handed down six judgments
concerning Commission decisions on access. Three further cases
were removed from the register following the withdrawal by the
applicant and another three following a decision of the General
Court not to adjudicate. Three additional applications were also
rejected by order of the General Court.
19.10 In 2012, 14 new cases were brought against
the Commission under the Regulation and one new appeal has been
brought to the Court of Justice against a judgment of the General
Court.
THE IFAW JUDGMENT
19.11 IFAW was a non-governmental organisation active
in the field of the protection of animal welfare and nature conservation.
It objected to an industrial project being carried out on a protected
site in Germany, and requested access to a number of documents
the Commission had received in connection with the examination
of the industrial project, in particular documents originating
from various authorities of the Federal Republic of Germany including
a letter from the German Chancellor to the President of the Commission.
The Court stated as follows:
· Regulation No. 1049/2001, as is apparent
from recital 4 in the preamble and from Article 1, is intended
to give the fullest possible effect to the right of public access
to documents held by an institution. Under Article 2(3) of the
Regulation, that right extends not only to documents drawn up
by an institution but also to documents received by an institution
from third parties, including the Member States, as expressly
stated in Article 3(b) of the regulation;
· However, Article 4 of the Regulation lays
down exceptions to the right of access to a document. In particular,
Article 4(5) provides that a Member State may request an institution
not to disclose a document originating from that State without
its prior agreement;
· In the present case, the Germany made
use of the possibility offered by Article 4(5) and requested the
Commission not to disclose the German Chancellor's letter. It
based its objection on the exceptions concerning the protection
of the public interest as regards international relations and
the economic policy of a Member State laid down in the third and
fourth indents of Article 4(1)(a) of the Regulation, and the exception
concerning the protection of the Commission's decision-making
process laid down in the second subparagraph of Article 4(3) of
the Regulation. Consequently, in the contested decision, the Commission
based its refusal to grant access to the German Chancellor's letter
on the objection raised by the German authorities pursuant to
Article 4(5) of Regulation No. 1049/2001;
· The Court has previously held that that
provision is procedural in nature, since it confines itself to
requiring the prior agreement of the Member State concerned where
that State has made a specific request to that effect, and that
it is a provision dealing with the process of adoption of the
EU decision;
· Unlike Article 4(4) of Regulation No.
1049/2001, which gives third parties only a right to be consulted,
with respect to documents originating from them, by the institution
concerned as regards the application of one of the exceptions
in Article 4(1) and (2), Article 4(5) makes the prior agreement
of the Member State a necessary condition for disclosure of a
document originating from it, if that State so requests;
· Where a Member State has made use of the
option given to it by Article 4(5) to request that a specific
document originating from that State should not be disclosed without
its prior agreement, disclosure of that document by the institution
requires the prior agreement of that Member State to be obtained;
· It follows, conversely, that an institution
which does not have the agreement of the Member State concerned
is not entitled to disclose the document. In the present case,
the Commission's decision on the request for access to the German
Chancellor's letter thus depended on the decision taken by the
German authorities as part of the process of adoption of the contested
decision;
· However, Article 4(5) does not confer
on the Member State concerned 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 an institution simply because it originates
from that Member State;
· The exercise of the power conferred on
the Member State concerned by Article 4(5) of the Regulation is
limited by the substantive exceptions set out in Article 4(1)
to (3), with the Member State merely being given in this respect
a power to take part in the institution's decision. The prior
agreement of the Member State referred to in Article 4(5) is thus
not a discretionary right of veto but a form of assent confirming
that none of the grounds of exception under Article 4(1) to (3)
is present. The decision-making process thus established by Article
4(5) of the Regulation therefore requires the institution and
the Member State involved to confine themselves to the substantive
exceptions laid down in Article 4(1) to (3);
· The institution to which the request is
made, as the maker of a decision to refuse access to documents,
is therefore responsible for the lawfulness of the decision. The
Court has thus held that the institution cannot accept a Member
State's objection to disclosure of a document originating from
that State if the objection gives no reasons at all or if the
reasons relied on by that State for refusing access to the document
in question do not refer to the exceptions listed in Article 4(1)
to (3);
· It follows that, before refusing access
to a document originating from a Member State, the institution
concerned must examine whether that State has based its objection
on the substantive exceptions in Article 4(1) to (3), and has
given proper reasons for its position;
· On the other hand, contrary to IFAW's
argument, the institution to which the request is made does not
have to carry out an exhaustive assessment of the Member State's
decision to object by conducting a review going beyond the verification
of the mere existence of reasons referring to the exceptions in
Article 4(1) to (3);
· To insist on such an exhaustive assessment
could lead to the institution being able, after carrying out the
assessment, wrongly to communicate the document in question to
the person requesting access, notwithstanding the objection, duly
reasoned in accordance with paragraphs 61 and 62 above, of the
Member State from which the document originates; and
· It follows that IFAW is not correct in
submitting that the General Court erred in law by not acknowledging
that the Commission was required, with respect to the document
whose disclosure was refused, to carry out an exhaustive assessment
of the reasons for objecting put forward by the Member State on
the basis of the exceptions in Article 4 of Regulation No. 1049/2001.
The Government's view
19.12 The Explanatory Memorandum of the Minister
of State at the Ministry of Justice (Lord McNally) states simply
that the Government welcomes the EU institutions' continued commitment
to transparency, and that it will continue to monitor the judgments
of, and ongoing cases in, the General Court and the Court of Justice.
Conclusion
19.13 In a change of practice from previous years
we report this document to the House, and set out the reasoning
of the Court's judgment in IFAW, because of the
importance that we attach to greater transparency in EU decision-making.
The IFAW judgment shows the limits placed on an EU institution's
assessment of a Member State's reason for non-disclosure.
19.14 We have no questions to ask of the Government
on this report, however, and so clear it from scrutiny.
42 (EC) 1049/2001. Back
43
C-477/10 Back
44
C-404/10 Back
45
C-135/11 Back
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