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Commission - Right of public access to Commission documents
- Decision 94/90 - Measure conferring rights on individuals -
Exceptions to the principle of access to documents - Interpretation
- Scope - Obligation to state reasons (EC Treaty, Art. 190; Commission
Decision 94/90)
Decision 94/90 on public access to Commission documents,
which includes a Code of Conduct on the subject, is capable of
conferring on third parties legal rights which the Commission
is obliged to respect. By adopting that decision, the Commission
has indicated to citizens who wish to gain access to documents
which it holds that their requests will be dealt with according
to the procedures, conditions and exceptions laid down for that
purpose. While, in this regard, the Code lays down exceptions
to the general principle that citizens should have access to
documents, those exceptions must be construed in a manner which
will not render it impossible to attain the objective of transparency
which the decision pursues.
More particularly, the Code distinguishes between two categories
of exceptions, the first of which, drafted in mandatory terms,
provides for refusal of access to any document where disclosure
could undermine, in particular, the protection of the public
interest, while the second, drafted in discretionary terms, provides
for the possibility of refusal in order to protect the institution's
interest in the confidentiality of its proceedings. The distinction
between these two categories of exceptions is explained by the
nature of the interests which they seek to protect, the first
protecting the interests of third parties or the general public,
while the second relates to the internal deliberations of the
institution, in which the institution's interest alone is at
stake.
With regard to the first category, the Commission is obliged
to refuse access to documents falling under any one of the exceptions
contained therein once the relevant circumstances are shown to
exist. With regard to the second category, while the Commission
enjoys a margin of discretion enabling it, if need be, to refuse
a request for access to documents touching upon its deliberations,
it must exercise this discretion by striking a genuine balance
between, on the one hand, the interest of the citizen in obtaining
access to those documents and, on the other, its own interest
in protecting the confidentiality of its deliberations.
Documents relating to an investigation into a possible infringement
of Community law by a Member State satisfy the conditions which
must be met for the Commission to be able to rely on the public
interest exception. The Commission is in this regard required
to indicate, at the very least by reference to categories of
documents, the reasons for which it considers that the documents
in question are related to the possible opening of an infringement
procedure, indicating to which subject-matter the documents relate
and particularly whether they concern the inspections or investigations
which a finding of infringement involves. That duty does not,
however, mean that the Commission is obliged in all cases to
furnish, in respect of each document, `imperative reasons' in
order to justify the application of that exception and thereby
risk jeopardizing its essential function, which follows from
the very nature of the public interest to be protected and the
mandatory character of the exception.
In order to meet the requirements to state reasons laid down
in Article 190 of the Treaty, a decision rejecting a request
for access must, for each category of exceptions, enable the
applicant, and consequently the Court, to ascertain whether the
Commission has complied with the above obligations.
In Case T-105/95,
WWF UK (World Wide Fund for Nature), a trust incorporated under
English law, whose head office is at Godalming, Surrey (United
Kingdom), represented by Georg M. Berrisch, Rechtsanwalt in Hamburg
and Brussels, with an address for service in Luxembourg at the
Chambers of Turk and Prüm, 13 B Avenue Guillaume,
applicant,
supported by
Kingdom of Sweden, represented by Erik Brattgård, Acting
Ministerial Adviser in the Trade Department of the Ministry of
Foreign Affairs, Box 16121, 103 23 Stockholm, acting as Agent,
intervener,
v
Commission of the European Communities, represented by Carmel
O'Reilly and Ulrich Wölker, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Centre, Kirchberg,
defendant,
supported by
French Republic, represented by Catherine de Salins, Assistant
Director in the Legal Department of the Ministry of Foreign Affairs,
and Denys Wibaux, Secretary for Foreign Affairs in the same department,
acting as Agents, with an address for service in Luxembourg at
the French Embassy, 9 Boulevard Prince Henri,
and
United Kingdom of Great Britain and Northern Ireland, represented
by John E. Collins, of the Treasury Solicitor's Department, acting
as Agent, assisted by Stephen Richards and Jessica Simor, Barristers,
with an address for service in Luxembourg at the British Embassy,
14 Boulevard Roosevelt,
interveners,
APPLICATION for the annulment of the Commission Decision of 2
February 1995 refusing the applicant access to Commission documents
relating to the examination of a project to build an interpretative
centre at Mullaghmore (Ireland) and, in particular, to those
documents relating to the question as to whether structural funds
could be used for that project,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Fourth Chamber, Extended Composition),
composed of: K. Lenaerts, President, R. García-Valdecasas,
P. Lindh, J. Azizi and J.D. Cooke, Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 18 September 1997
gives the following
Judgment
Legislative context
1 In the Final Act of the Treaty on European Union signed at
Maastricht on 7 February 1992 the Member States incorporated
a Declaration (No 17) on the right of access to information in
these terms:
`The Conference considers that transparency of the decision-making
process strengthens the democratic nature of the institutions
and the public's confidence in the administration. The Conference
accordingly recommends that the Commission submit to the Council
no later than 1993 a report on measures designed to improve public
access to the information available to the institutions.'
2 At the close of the European Council held in Birmingham on
16 October 1992, the Heads of State and of Government issued
a declaration entitled `A Community close to its citizens' (Bull.
EC 10-1992, p. 9), in which they stressed the necessity to make
the Community more open. That commitment was reaffirmed by the
European Council at Edinburgh on 12 December 1992 and the Commission
was again invited to continue to work on improving access to
the information available to Community institutions (Bull. EC
12-1992, p. 7).
3 In response to the Maastricht Declaration the Commission undertook
a comparative survey on public access to documents in the Member
States and in some non-member countries and the results of its
survey were summarized in a communication addressed to the Council,
the Parliament and the Economic and Social Committee on 5 May
1993 (93/C 156/05, OJ 1993 C 156, p. 5). In that communication
the Commission concluded that there was a case for developing
further the access to documents at Community level.
4 In furtherance of the above measures the Council and the Commission
formulated and agreed a `Code of Conduct on public access to
Commission and Council documents' (hereinafter the `Code of Conduct')
and undertook severally to take steps to implement the principles
thereby laid down before 1 January 1994.
5 Accordingly, in implementation of that agreement the Commission
adopted, on 8 February 1994, on the basis of Article 162 of the
EC Treaty, Decision 94/90/ECSC, EC, Euratom on public access
to Commission documents (hereinafter `Decision 94/90') under
Article 1 of which the Code of Conduct was formally adopted (OJ
1994 L 46, p. 58). The text of this Code is set out in an Annex
to Decision 94/90.
6 The Code of Conduct as thus adopted by the Commission sets
out a general principle in these terms:
`The public will have the widest possible access to documents
held by the Commission and the Council.'
7 For those purposes the term `document' is defined in the Code
of Conduct as meaning `any written text, whatever its medium,
which contains existing data and is held by the Commission or
the Council.'
8 After briefly setting out the rules governing the lodging and
processing of requests for documents, the Code of Conduct describes
the procedure to be followed, where it is proposed to reject
a request, in these terms:
`Where the relevant departments of the institution concerned
intend to advise the institution to reject an application, they
will inform the applicant thereof and tell him that he has one
month to make a confirmatory application to the institution for
that position to be reconsidered, failing which he will be deemed
to have withdrawn his original application.
If a confirmatory application is submitted, and if the institution
concerned decides to refuse to release the document, that decision,
which must be made within a month of submission of the confirmatory
application, will be notified in writing to the applicant as
soon as possible. The grounds of the decision must be given,
and the decision must indicate the means of redress that are
available, i.e. judicial proceedings and complaints to the ombudsman
under the conditions specified in, respectively, Articles 173
and 138e of the Treaty establishing the European Community.'
9 The Code of Conduct describes the factors which may be invoked
by an institution to ground the rejection of a request for access
to documents in these terms:
`The institutions will refuse access to any document where disclosure
could undermine:
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural
or legal persons that supplied the information or as required
by the legislation of the Member State that supplied the information.
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings.'
Factual background to the proceedings
10 In 1991, the Irish authorities announced a plan to build a
visitors' centre at Mullaghmore in the Burren National Park in
the west of Ireland. They proposed to use structural funds for
the project. The applicant lodged a complaint in relation to
those proposals with the Commission, objecting that the project
would infringe Community environmental law and involve a wrongful
application of structural funds.
11 The Commission subsequently opened an investigation into the
project, including the alleged infringement of environmental
law and the eligibility of the project for structural funds in
that context. On 7 October 1992 the Commission announced that
it did not intend to initiate Treaty infringement proceedings
against Ireland since it had found that the project did not infringe
Community environmental law. On the same day, Commissioner Millan,
who was then responsible for regional policies, confirmed that
decision in similar terms to the Irish Department of Finance.
Commissioner Millan indicated that there was now no obstacle
to structural funds being allocated to assist the project.
12 The decision of the Commission on 7 October 1992 had been
the subject of an action for annulment brought jointly by the
applicant and An Taisce (an Irish non-governmental organization).
In its judgment of 23 September 1994, this Court declared the
application in question inadmissible (Case T-461/93 An Taisce
and WWF (UK) v Commission [1994] ECR II-733). The judgment of
the Court was appealed to the Court of Justice which, by order
of 11 July 1996, dismissed the appeal (Case C-325/94 P An Taisce
and WWF (UK) v Commission, [1996] ECR I-3727.
13 By two separate letters in identical terms, each dated 4 November
1994 and written to the Directors General of DG XI (Environment)
and DG XVI (Regional Policies), counsel for the applicant, relying
on Decision 94/90, requested access to all Commission documents
relating to the examination of the Mullaghmore project and particularly
to the examination of the question whether structural funds might
be used for it. This demand for access was formulated as follows:
`On 21 June 1991 WWF UK lodged a complaint with the Commission
against the project of the Irish Department of Finance concerning
the construction of an interpretative centre for visitors at
Mullaghmore (Ireland). An TAISCE subsequently joined this complaint.
My clients objected against the project and, in particular, that
Community structural funds may be used by Ireland for the project.
They argued that the project would violate EC environmental law.
In the following, several letters were exchanged between the
Commission's services and my clients. They concerned the questions
(1) whether the Commission would initiate proceedings under Article
169 of the Treaty against Ireland with regard to the project,
and (2) whether the Commission would allow structural funds to
be used for the project. On 7 October 1992 the Commission issued
a press release stating that it had decided not to initiate infringement
proceedings against Ireland. On the same day, Commissioner Bruce
Millan (responsible for regional policies) wrote to Mr Noel Treacy
(Irish Minister of State, Department of Finance) a letter stating
that following the decision not to initiate infringement proceedings
there would now be no obstacle of structural funds assistance
for the project.
On behalf of my clients I respectfully request access to all
Commission documents relating to the examination of the Mullaghmore
project, and in particular to the examination whether structural
funds may be used for the project. Preferably, we should like
to receive copies of the relevant documents.'
14 By letters dated 17 November 1994 and 24 November 1994, Mr
Krämer, an official in DG XI, and Mr Landaburu, Director
General of DG XVI, informed counsel for the applicant of the
rejection of this request.
15 In the letter of 17 November 1994 from DG XI the refusal was
explained as follows:
`I regret to inform you that the documents you have requested
fall under the exceptions to access provided for under the access
policy. Consequently, I do not intend to make the documents available.
The exceptions serve to protect public and private interests,
and to ensure that the Commission's internal deliberations remain
confidential. I attach a list of them for your information, and
can inform you that the relevant exemptions in the case of the
documents you have requested are the protection of the public
interest (in particular, inspections and investigations) and
the protection of the Commission's interest in the confidentiality
of its own proceedings. The documents you have requested relate
to the investigation of complaints, as well as to the Commission's
internal deliberations.'
16 In the letter of 24 November 1994 from DG XVI the refusal
was explained as follows:
`I regret to inform you that the additional documents you have
requested fall under the exemptions to access provided for under
the access policy. Consequently, I do not intend to make the
documents available.
The exemptions serve in particular to ensure that the Commission's
internal deliberations remain confidential. Such documents would
include all internal notes, exchange of letters between services
including the Legal Service, and all other information whose
disclosure would infringe the confidentiality of the Commission's
deliberations.'
17 Issue was then taken on behalf of the applicant with these
refusals and, by letters dated 19 December 1994, counsel for
the applicant submitted confirmatory applications, in accordance
with the procedure described in the Code of Conduct, to the Secretary
General of the Commission.
18 Writing to the Secretary General separately in relation to
the request made to DG XI and after referring to the request
of 4 November and the reply of 17 November 1994, counsel for
the applicant took issue with the refusal to grant him access
to the documents held by that DG in these terms:
`Mr Krämer argued that the documents would fall under the
exemptions to access provided for under the Commission's access
policy. He cited as relevant exemption the confidentiality of
the Commission's internal deliberation procedure, and the protection
of public interest (in particular, inspections and investigations).
On behalf of my clients I write to confirm my application for
access to the above mentioned documents and formally to request
that you review your intention to refuse access.
The right of public access to Commission documents has been granted
in order to provide for transparency in the Commission's decision
making process. In addition, the process is intended to strengthen
the confidence of the public in the administration (cf. the preamble
of the Code of Conduct concerning public access to Commission
and Council documents; OJ 1994 No L 46/60). These objectives
can only be achieved if access is granted to the greatest extent
possible. Thus, the Commission should only refuse access to its
documents if this is absolutely indispensable. Consequently,
the exemptions to access to Commission documents must be interpreted
narrowly.
Moreover, the Code of Conduct merely provides that the Commission
may refuse access in order to protect the institution's interest
in the confidentiality of its proceedings. Thus, this exemption
is not mandatory. The Commission can only invoke this exemption
if the particular circumstances of a case make it necessary to
keep the internal deliberation procedure confidential. No such
circumstances were mentioned by the Director General. Indeed,
it is clear from the list of circumstances in which the exemption
policy may be applied that none are relevant to this case.
Finally, the present application constitutes a request for access
to documents relating to proceedings which have been closed since
October 1992. In such case the ability of the Commission to think
in private is no longer at stake. This is also mentioned in the
internal guidelines of the Commission (COM Doc. SEC(94)321 of
16 February 1994). Therefore, the Commission can, in our view,
not rely on the exemption of the protection of public interest.
In any event, the exemptions could only justify to refuse access
to some of the documents for which access has been requested.'
19 A letter written on the same day to the Secretary General
in respect of the request made to DG XVI was in the same terms
as that cited in paragraph 18 above, save that the first paragraph
read as follows:
`The Director General argued that the documents would fall under
the exemptions to access provided for under the Commission's
access policy. He cited as relevant exemption the confidentiality
of the Commission's internal deliberation procedure.'
20 The Secretary General of the Commission replied to those letters
by a single letter dated 2 February 1995 in which he reconfirmed
the refusals of the requests made to the Directorates General
XI and XVI and reiterated the grounds relied upon by the Commission
in these terms:
`Thank you for your letters of 19 December 1994 in which you
seek a review of the intention of Mr Krämer (DG XI) and
Mr Landaburu (DG XVI) to refuse access to the Commission documents
relating to the examination of the Mullaghmore project, and in
particular to the examination of whether structural funds may
be used for the project.
In your letters you argue that in the interests of promoting
transparency in the Commission's decision making process and
strengthening the confidence of the public in the administration,
the Commission should only refuse access to its documents if
this is absolutely indispensable, and that the exemptions to
access to Commission documents must be interpreted narrowly.
That is actually the way the Commission applies its policy of
transparency: each request is treated individually and thoroughly
examined on a case-by-case basis. The fundamental principle guiding
the consideration of each request is that the public will have
the widest possible access to documents held by the Commission,
albeit with certain exemptions to protect public and private
interests which could be damaged if access to certain documents
were permitted, and to ensure that the Commission can deliberate
in confidence.
These exceptions were expressly envisaged by the Code of Conduct
concerning public access to Commission and Council documents,
adopted on 8 February 1994.
Having examined your request, I have to confirm the position
of Mr Landaburu and Mr Krämer, for the reason that the disclosure
of these documents could affect the protection of the Commission
interest in the confidentiality of its proceedings, and the protection
of the public interest, in particular the proper progress of
the infringement proceeding.
Indeed, it is essential for the Commission to be able to investigate
matters with which it is concerned as guardian of the Treaties,
whilst respecting the confidential nature of such proceedings.
It is clear that it is indispensable for the Commission to ensure
that a climate of mutual confidence is maintained, which would
risk being severely disrupted by publicity. Such publicity is
not easily reconciled with the search for a settlement to a dispute
at a preliminary stage.
The disclosure, particularly of letters exchanged between the
Commission and the Member State concerned, could prejudice the
treatment of infringements of Community law.
Actually, in the case of the Interpretative Centre in Ireland,
the Commission has made available to the public - in a press
release - its reasons for not issuing infringement proceedings
against Ireland on environmental grounds.
Finally, I should like to draw your attention to the means of
redress that are available, i.e., judicial proceedings and complaints
to the Ombudsman under the conditions specified respectively
in Articles 173 and 138e of the Treaty establishing the European
Community.'
21 This letter from the Secretary General of the Commission,
dated 2 February 1995, contains the decision challenged in the
present case (hereinafter the `Contested Decision').
Procedure and forms of order sought
22 The applicant then brought the present action on 18 April
1995. After the defence had been lodged, the applicant informed
the Court, by letter received on 10 August 1995, that it would
not be lodging a reply.
23 By order of the President of the Fourth Chamber of the Court
of First Instance of 16 November 1995, Sweden was granted leave
to intervene in support of the applicant and France, Ireland
and the United Kingdom were granted leave to intervene in support
of the defendant. Ireland subsequently decided to withdraw its
intervention.
24 The written procedure closed on 31 May 1996. Upon hearing
the report of the Judge-Rapporteur, the Court decided to open
the oral procedure without any preparatory inquiry but decided
to put a question to the Commission in writing to which a reply
was received on 18 July 1996.
25 The parties, with the exception of France, presented oral
argument and answered questions put to them by the Court at the
hearing on 18 September 1996.
26 The applicant, supported by Sweden, claims that the Court
should:
- annul the decision of the Commission contained in its letter
of 2 February 1995;
- order the Commission to pay the costs of the proceedings.
27 The Commission contends that the Court should:
- dismiss the application;
- order the applicant to pay the costs of the proceedings.
28 France and the United Kingdom, as interveners, contend that
the Court should:
- dismiss the application as unfounded.
Substance
29 The applicant relies upon two pleas in law in support of its
application. The first is based on breach of the Code of Conduct
and infringement of Decision 94/90. The second is based upon
infringement of Article 190 of the EC Treaty.
30 In view of the interdependence of the arguments advanced in
support of both grounds of the application, the Court considers
it appropriate to examine them together.
On the first and second pleas taken together: infringement of
Decision 94/90, of the Code of Conduct and of Article 190 of
the Treaty
Arguments of the parties
- Infringement of Decision 94/90 and the Code of Conduct
31 The applicant alleges that the Commission has infringed Decision
94/90 by mistakenly invoking the exceptions to the principle
of access to documents provided for in the Code of Conduct as
adopted by Article 1 of the Decision. The applicant first makes
some observations as to the legal nature of the Code of Conduct
and its interpretation.
32 Thus, it submits first that Decision 94/90 and the Code of
Conduct are legally binding upon the Commission and operate to
confer upon persons in the Community a right of access to documents
`to the widest extent possible'.
33 In this the applicant is supported by the Swedish Government
which emphasizes that Decision 94/90 and the Code of Conduct,
taken together, constitute a binding legal measure conferring
rights on citizens and imposing obligations on the Commission.
34 The Commission disputes the legal effect attributed by the
applicant to Decision 94/90 and the Code of Conduct and argues
that the texts represent no more than the practical implementation
of a policy orientation which is to be found in the declarations
of the Member States and the European Council referred to in
paragraphs 1 to 3 above. According to the Commission, Decision
94/90 and the Code of Conduct, properly construed, give rise
to no absolute or fundamental right of access to documents in
favour of citizens. Rather, they accord to applicants no more
than a right to have their requests dealt with in accordance
with the principles and procedures which are thereby laid down.
35 The applicant then submits that, especially as the general
principle is particularly important, the exceptions provided
for in the Code of Conduct should be construed restrictively
and in the light of that principle so as to avoid defeating the
particular purpose of the Code, namely, that of conferring on
the public the right of `the broadest possible access to documents'.
In support of this argument, the applicant refers to the principles
which flow from the case-law of the Court of Justice relating
to free movement of persons and freedom of establishment (Case
13/68 Salgoil [1968] ECR 661; Case 2/74 Reyners [1974] ECR 631
and Case 30/77 Bouchereau [1977] ECR 1999) and to the free movement
of goods (Case 46/76 Bauhuis [1977] ECR 5; Case 113/80 Commission
v Ireland [1981] ECR 1625).
36 Moreover, the applicant submits that, given the importance
of the objective of the Code of Conduct and having regard to
its legislative history, the Commission is not entitled to invoke
the exceptions in a general way but must establish by reference
to the particularities of each case the `imperative reasons'
for which the conditions for application of an exception are
fulfilled. In this regard the applicant relies upon the order
of the Court of Justice in Case C-2/88 J.J. Zwartveld and Others
[1990] ECR I-4405 (paragraphs 11 and 12).
37 In rebutting that argument the Commission contends that the
applicant has misunderstood the status of the Code of Conduct
and the nature of its exceptions. According to the Commission,
the exceptions represent no more than the limits or parameters
of the Commission's self-assumed obligation. Since it is designed
to implement a general policy orientation, the Code of Conduct
cannot be equated with fundamental rules derived directly from
the Treaty and the Commission therefore considers the case-law
relied upon by the applicant to be irrelevant.
38 The Commission goes on to add that the exceptions in the Code
of Conduct are distinguished according to their mandatory or
discretionary character. The Commission points out that when
it relies upon a mandatory exception it has no need to engage
in an exercise of balancing its interests against those of the
person who has requested access to the documents. It argues that,
having regard to the nature of the interests involved under the
heading of mandatory exceptions, the balance of interests was
in effect struck at the time when the Code of Conduct was adopted.
On the other hand, when a discretionary exception is invoked,
the balancing of interests is undertaken at that point.
39 Secondly, the applicant challenges the reference in the Contested
Decision to the exception in favour of protection of the public
interest (hereinafter the `public interest exception') and to
that in favour of protection of the institution's interest in
the confidentiality of its proceedings (hereinafter the `confidentiality
exception').
40 Thus, on the one hand, the applicant argues that the Commission
has interpreted the public interest exception too widely by refusing
access to all documents relating to infringement proceedings
with regard to their content, to the specific circumstances of
the particular investigation and to the length of time elapsed
since the closing of the investigation. Such an interpretation,
according to the applicant, seriously jeopardizes the two main
objectives of the Community's policy on access to documents,
namely that of enhancing the transparency of the decision-making
process and that of strengthening public confidence in the Community
administration. There is no reason why, as a general rule, infringement
proceedings must be conducted in conditions of absolute confidentiality.
The applicant also submits that the Commission is entitled to
refuse access to documents relating to infringement procedures
only on a case-by-case basis where it can demonstrate, by reference
to imperative reasons, why disclosure would undermine the protection
of the public interest.
41 On the other hand, the applicant considers that the reliance
in the Contested Decision on the confidentiality exception fails
to fulfil the conditions required in the Code of Conduct. The
applicant thus alleges that the Commission was content merely
to claim that the documents in question related to its own internal
deliberations, without undertaking any balancing of its own interests
against the applicant's right to access to them. Moreover, having
regard to the fact that the documents in question relate to infringement
proceedings which had been closed since October 1992, the applicant
argues that only exceptional circumstances could justify the
fact that the Commission continues to rely on this exception.
The applicant also emphasizes that the Commission has failed
to provide the necessary `imperative reasons', contrary to the
requirements of the case-law (see the order in Zwartveld, cited
above, paragraphs 11 and 12).
42 The Swedish Government, while acknowledging that the Commission
enjoys a margin of discretion in invoking the confidentiality
exception, submits that the necessary balancing exercise must
be carried out in respect of each individual document separately.
It notes that the applicant asked both for documents relating
to examination of a possible infringement of Community law by
Ireland and for documents relating to the question of structural
funding being used for the Mullaghmore project. The fact that
the applicant did not receive a single document indicates that
no balancing of interests in respect of each document had been
carried out by the Commission.
43 The Commission denies that it wrongly invoked the exceptions
provided for in the Code of Conduct in the Contested Decision.
On the one hand, the Commission contends that the obligatory
nature of certain exceptions in the Code of Conduct derives from
its clear wording which stipulates that `the institutions will
refuse access to any documents where disclosure could undermine
...'. The public interest exception is one of the mandatory exceptions.
44 The Commission contends that it is clear from the very wording
of the Code of Conduct that once there is a danger that disclosure
of particular documents would undermine the public interest,
the application of the exception is obligatory and the Commission
has no choice but to refuse access. It argues that the mandatory
exceptions constitute in themselves imperative reasons. It points
out that the Code of Conduct consists otherwise of examples of
the different interests to be protected.
45 In the Commission's view, the relationship between it and
the Member States with regard to investigation of infringements
is founded upon its obligation of cooperation with the Member
States under Article 5 of the EC Treaty. Such cooperation permits
negotiation between the parties with a view to reaching a settlement
and it was the possibility of precisely such frank and open dialogue
that enabled a compromise to be achieved in discussions with
the Irish authorities in the present case. The Commission therefore
considers that access to documents relating to an infringement
procedure must be refused, given the duty to protect the public
interest imposed by the Code of Conduct.
46 It cannot be criticized for having failed to take account
of the factors peculiar to the Mullaghmore case, because, once
the investigation of a possible infringement falls automatically
within the public interest exception, it is not necessary to
explain the application of the exception for each particular
investigation.
47 The Commission also rejects the assertion that the exception
can no longer be invoked because of the lapse of time since the
closure of the Mullaghmore file in October 1992. The Commission
argues that as no decision was taken on the infringement procedure,
the Irish authorities were bound by virtue of their duty of due
cooperation under Article 5 of the EC Treaty to abide by the
guarantees they had given. Moreover, the subject-matter of the
file remained the subject of litigation in the appeal against
the judgment of the Court of First Instance of 23 September 1994
in Case T-461/93 which was still pending before the Court of
Justice at that time (Case C-325/94 P An Taisce and WWF (UK)
v Commission, cited above).
48 The French and United Kingdom Governments support the Commission's
argument to the effect that the wording of the Code of Conduct
in relation to this exception is clearly mandatory and that the
Commission must therefore refuse access to documents when disclosure
could damage the public interest. Both Member States support
the Commission's argument regarding the vital need to foster
a climate of mutual confidence in discussions which precede a
possible infringement action. It is, they say, clearly in the
interest of the Community that the Commission should be able
to discuss possible breaches of Community law by Member States
in conditions of absolute confidentiality with a view to achieving
a settlement. Moreover, according to the United Kingdom Government,
the very possibility of documents being released in the future
is sufficient to damage that climate of confidence with the result
that the mere fact that a procedure has been closed does not
bring to an end the applicability of this exception.
49 On the other hand, the Commission argues that the use of the
word `may' in the wording of the confidentiality exception shows
that in this instance it has a discretion. It contends that it
is clear from the terms of the Contested Decision that the confidentiality
invoked does not concern internal procedures or deliberations
of an executive nature but relates to a particular type of quasi-judicial
procedure, namely the examination and investigation of infringements,
including the contacts between the Commission and the Member
States in respect of such investigations. Since the confidentiality
in question involves exactly the same elements as those of the
public interest exception, the Commission's entitlement to invoke
the former exception is precisely the same as its entitlement
to rely upon the latter. Furthermore, the Commission rejects
the submission of the Swedish Government and argues that if it
were required to justify the use of the confidentiality exception
by reference to the content of each document, the value of the
confidentiality exception would effectively be nullified.
- Infringement of Article 190 of the Treaty
50 In the submission of the applicant, the Contested Decision
fails to meet the requirement to provide sufficient reasons,
laid down in Article 190 of the Treaty, because it consists merely
of broad statements which fail to address the specific circumstances
of the case. The applicant again points to the absence of any
reference to `imperative reasons' justifying the Commission's
refusal and to the absence of any balancing of interests in this
regard.
51 The Swedish Government asserts that the Contested Decision
gives no indication of the reasons which would justify the maintenance
of confidentiality in respect of each individual document. Nor
is it clear from the terms of the Contested Decision, according
to the Swedish Government, which of the two grounds of exception
has been relied upon in respect of each document to which access
has been refused.
52 In reply, the Commission maintains that the Contested Decision
does give a clear account of the considerations, both of law
and of fact, upon which it is based. The Commission contends
that the applicant's arguments under this second plea are directed
not so much against the sufficiency of the reasoning but against
its validity and are, to that extent, founded on a mistaken understanding
of the requirement laid down by Article 190 of the Treaty.
Findings of the Court
53 It seems necessary to consider, in the first place, the legal
force to be attributed to Decision 94/90, Article 1 of which
adopted the Code of Conduct, and, secondly, the scope of the
exceptions provided for in the Code.
54 It is clear, first of all, that Decision 94/90 constitutes
the Commission's response to the calls made by the European Council
to reflect at Community level the right of citizens to have access
to documents held by public authorities, a right which is recognized
in the domestic legislation of most of the Member States. So
long as the Community legislature has not adopted general rules
on the right of public access to documents held by the Community
institutions, it falls to those institutions themselves to take
measures within their powers of internal organization to enable
them to respond to and to process such requests for access in
a manner commensurate with the interests of good administration
(see Case C-58/94 Netherlands v Council [1996] ECR I-2169, paragraphs
34 to 37) in respect of the corresponding decision adopted by
the Council on 20 December 1993 (Decision 93/731/EC on public
access to Council documents (OJ 1993 L 340, p. 43), hereinafter
`Decision 93/731').
55 By adopting Decision 94/90, the Commission has indicated to
citizens who wish to gain access to documents which it holds
that their requests will be dealt with according to the procedures,
conditions and exceptions laid down for the purpose. Although
Decision 94/90 is, in effect, a series of obligations which the
Commission has voluntarily assumed for itself as a measure of
internal organization, it is nevertheless capable of conferring
on third parties legal rights which the Commission is obliged
to respect.
56 Next, it is necessary to consider the scope to be given to
the exceptions contained in the Code of Conduct. In that regard,
it is important to note that where a general principle is established
and exceptions to that principle are then laid down, the exceptions
should be construed and applied strictly, in a manner which does
not defeat the application of the general rule. In particular,
the grounds for refusing a request for access to Commission documents,
set out in the Code of Conduct as exceptions, should be construed
in a manner which will not render it impossible to attain the
objective of transparency expressed in the response of the Commission
to the calls of the European Council (see paragraphs 2 and 54
above).
57 The Court considers that the Code of Conduct contains two
categories of exception to the general principle of citizens'
access to Commission documents and these correspond to the provisions
of Article 4 of Decision 93/731.
58 According to the wording of the first category, drafted in
mandatory terms, `the institutions will refuse access to any
document where disclosure could undermine ... [in particular]
the protection of the public interest (public security, international
relations, monetary stability, court proceedings and investigations)
...' (see paragraph 9 above). It follows that the Commission
is obliged to refuse access to documents falling under any one
of the exceptions contained in this category once the relevant
circumstances are shown to exist (see, in relation to the corresponding
provisions of Decision 93/731, Case T-194/94 John Carvel and
Guardian Newspapers v Council [1995] ECR II-2765, paragraph 64).
59 By way of contrast, the wording of the second category, drafted
in discretionary terms, provides that the Commission `may also
refuse access in order to protect the institution's interest
in the confidentiality of its proceedings' (see paragraph 9 above).
It follows, accordingly, that the Commission enjoys a margin
of discretion which enables it, if need be, to refuse a request
for access to documents which touch upon its deliberations. The
Commission must nevertheless exercise this discretion by striking
a genuine balance between, on the one hand, the interest of the
citizen in obtaining access to those documents and, on the other,
its own interest in protecting the confidentiality of its deliberations
(see, in relation to the corresponding provisions of Decision
93/731, the judgment in Carvel and Guardian Newspapers v Council,
cited above, paragraphs 64 and 65).
60 The Court considers that the distinction between these two
categories of exception in the Code of Conduct is explained by
the nature of the interest which the categories seek respectively
to protect. The first category, comprising the `mandatory exceptions',
effectively protects the interest of third parties or of the
general public in cases where disclosure of particular documents
by the institution concerned would risk causing harm to persons
who could legitimately refuse access to the documents if held
in their own possession. On the other hand, in the second category,
relating to the internal deliberations of the institution, it
is the interest of the institution alone which is at stake.
61 The Commission is, however, entitled to invoke jointly an
exception within the first category and one within the second
in order to refuse access to documents which it holds, since
no provision of Decision 94/90 precludes it from doing so. In
effect, the possibility cannot be ruled out that the disclosure
of particular documents by the Commission could cause damage
both to interests protected by the exceptions of the first category
and to the Commission's interest in maintaining the confidentiality
of its deliberations.
62 Having regard to these factors, it is necessary to consider,
secondly, whether the documents relating to an investigation
into a possible breach of Community law, leading potentially
to the opening of a procedure under Article 169 of the Treaty,
satisfy the conditions which must be met for the Commission to
be able to rely upon the public interest exception, which is
one of the exceptions within the first category provided for
in the Code of Conduct.
63 In this regard, the Court considers that the confidentiality
which the Member States are entitled to expect of the Commission
in such circumstances warrants, under the heading of protection
of the public interest, a refusal of access to documents relating
to investigations which may lead to an infringement procedure,
even where a period of time has elapsed since the closure of
the investigation.
64 It is important, nevertheless, to point out that the Commission
cannot confine itself to invoking the possible opening of an
infringement procedure as justification, under the heading of
protecting the public interest, for refusing access to the entirety
of the documents identified in a request made by a citizen. The
Court considers, in effect, that the Commission is required to
indicate, at the very least by reference to categories of documents,
the reasons for which it considers that the documents detailed
in the request which it received are related to the possible
opening of an infringement procedure. It should indicate to which
subject-matter the documents relate and particularly whether
they involve inspections or investigations relating to a possible
procedure for infringement of Community law.
65 The duty identified in the preceding paragraph does not, however,
mean that the Commission is obliged in all cases to furnish,
in respect of each document, `imperative reasons' in order to
justify the application of the public interest exception and
thereby risk jeopardizing the essential function of the exception
in question, which follows from the very nature of the public
interest to be protected and the mandatory character of the exception.
It would be impossible, in practical terms, to give reasons justifying
the need for confidentiality in respect of each individual document
without disclosing the content of the document and, thereby,
depriving the exception of its very purpose.
66 Thirdly, it is necessary to consider whether the Contested
Decision meets the requirement to state reasons which flows from
Article 190 of the Treaty. In that connection, it should be noted
that the duty to give reasons for every decision has a two-fold
purpose, namely, on the one hand, to permit interested parties
to know the justification for the measure in order to enable
them to protect their rights; and, on the other, to enable the
Community judicature to exercise its power to review the legality
of the decision (see, in particular, the judgments of the Court
of Justice in Case C-350/88 Delacre v Commission [1990] ECR I-395,
paragraph 15; and of the Court of First Instance in Case T-85/94
Branco v Commission [1995] ECR II-45, paragraph 32).
67 The Court next notes that in the Contested Decision, the Secretary
General of the Commission relied simultaneously both on the confidentiality
exception and on the public interest exception in justifying
his decision to refuse access to the entirety of the documents
identified in the applicant's request, in relation both to DG
XVI and to DG XI, without making any distinction between the
documents held by those Directorates General respectively. In
the Contested Decision, the Secretary General of the Commission
also confirmed the refusal which had been given to the applicant,
on the one hand by DG XVI on the basis of the confidentiality
exception alone (see paragraph 16 above) and, on the other hand,
by DG XI on the dual basis of the public interest exception and
the confidentiality exception (see paragraph 15 above). In order
to assess the adequacy of the reasons given in the Contested
Decision for the purposes of Article 190 of the Treaty, it is
therefore necessary to examine the terms of the Contested Decision
together with those of the letters from DG XVI and DG XI on 24
and 17 November 1994 respectively (see paragraphs 16 and 15 above).
68 So far as concerns the refusal of the applicant's request
for access to the documents held by DG XVI, it is to be noted
that the Contested Decision, apart from its general reference
to the public interest exception, confirms the terms of the letter
of 24 November 1994 from DG XVI. In this letter, DG XVI had relied
solely on the confidentiality exception.
69 Given that the Commission confined itself in the Contested
Decision to confirming the terms of the letter of 24 November
1994 from DG XVI without indicating either that the reference
to the public interest exception applied equally to the documents
covered by the applicant's request to DG XVI or that a connection
existed between the documents held by that Directorate General
and the possible commencement of an infringement proceeding,
it necessarily follows that the Contested Decision confined its
reasons for refusing that request solely to the confidentiality
exception, as had been indicated in the letter of 24 November
1994.
70 It does not appear from the letter of 24 November 1994 from
DG XVI or from the Contested Decision that the Commission had
fulfilled its duty to undertake a genuine balancing of the interests
involved as required by the Code of Conduct (see paragraph 59
above) because both the Contested Decision and the letter from
DG XVI of 24 November confined themselves to mention of the confidentiality
exception in order to refuse the applicant's request, and made
no mention of any balancing of the interests involved.
71 Furthermore, it is not now open to the Commission to claim
before the Court, as it did in its letter of 18 July 1996 in
response to a question from the Court (see paragraph 24 above),
that all of the documents in question, including those held by
DG XVI, are covered by the public interest exception, since the
Contested Decision refers expressly to the letter of 24 November
1994 from DG XVI, which makes no reference to the public interest
exception.
72 It follows that, in so far as it deals with the request of
the applicant in relation to the documents held by DG XVI, the
Contested Decision does not meet the requirement to state reasons
laid down in Article 190 of the Treaty, and must therefore be
annulled to that extent.
73 In so far as concerns the refusal of the applicant's request
for access to the documents held by DG XI, inasmuch as the Contested
Decision confirmed the terms of the letter of DG XI of 17 November
1994 (see paragraph 20 above), invoking jointly the public interest
exception and the confidentiality exception, it cannot be held
incompatible with the provisions of the Code of Conduct (see
paragraph 61 above).
74 The Court also notes that even though, in the Contested Decision,
the Commission sets out in general terms the reasons for which
it considers that the public interest exception ought to be applied
to documents relating to investigations into a possible infringement
of Community law, leading potentially to the opening of an infringement
procedure under Article 169 of the Treaty, it has given no indication,
even by reference to categories of documents, of its reasons
for considering that the documents covered by the request to
DG XI were all related to a possible infringement proceeding
(see paragraph 64 above).
75 Furthermore, it is also clear that in its letter of 17 November
1994 DG XI had not indicated either, even by reference to categories
of documents, the reasons for which the requested documents were
in its view all covered by the public interest exception. It
confined itself to the explanation that `the relevant exemptions
in the case of the documents you have requested are the protection
of the public interest (in particular, inspections and investigations)
and the protection of the Commission's interest in the confidentiality
of its own proceedings. The documents you have requested relate
to the investigation of complaints, as well as to the Commission's
internal deliberations' (see paragraph 15 above).
76 Thus, as the Commission refrained both in the Contested Decision
and in the letter of 17 November 1994 from DG XI from indicating
that all the documents requested from DG XI were covered by the
public interest exception and simultaneously relied upon the
confidentiality exception, the applicant could not have ruled
out the possibility that some of the documents held by DG XI
were refused to it because they were covered by the confidentiality
exception alone. Neither the terms of the Contested Decision
nor those of the letter of 17 November 1994 from DG XI enable
the applicant and, therefore, the Court to ascertain whether
the Commission fulfilled its obligation to undertake a genuine
balancing of the interests involved as required by the Code of
Conduct (see paragraph 59 above), given that they both rely upon
the confidentiality exception and make no mention of any balancing
of the interests involved.
77 It follows that, in so far as the Contested Decision deals
with the request made by the applicant to DG XI, it again fails
to meet the requirements to state reasons which it laid down
in Article 190 of the Treaty and must therefore be annulled to
that extent.
78 For all of these reasons, the Court considers that the application
is well founded and that the Contested Decision must be annulled.
Costs
79 Under Article 87(2) of the Rules of Procedure of the Court
of First Instance, the unsuccessful party is to be ordered to
pay the costs if they have been applied for in the successful
party's pleadings. Since the Commission has, in substance, been
unsuccessful and the applicant has applied for costs, the defendant
must be ordered to pay the costs. Under Article 87(4) of those
Rules, Member States and institutions which intervene in proceedings
before the Court are required to bear their own costs. The Kingdom
of Sweden, which intervened in support of the applicant, and
the French Republic and the United Kingdom, which intervened
in support of the defendant, must therefore bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Fourth Chamber, Extended Composition)
hereby:
1. Annuls the decision of the Commission of 2 February 1995 refusing
the applicant access to Commission documents relating to the
examination of a project to build an interpretative centre at
Mullaghmore (Ireland);
2. Orders the Commission to pay the costs of the applicant;
3. Orders the Kingdom of Sweden, the French Republic and the
United Kingdom of Great Britain and Northern Ireland to bear
their own costs. |
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