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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
- Obligation to state reasons - Scope - Refusal to grant access
not indicating the specific reasons justifying the exception
relied upon - Illegality
(EC Treaty, Arts 162 and 190; Commission Decision 94/90)
Notwithstanding the fact that Article 162 of the Treaty
was taken as its legal basis, Decision 94/90 on public access
to Commission documents is a measure conferring on citizens a
right of access to documents held by that institution, since
there is nothing to prevent rules on the internal organisation
of the work of an institution having legal effects vis-à-vis
third parties. By virtue of that decision, which is intended
to apply generally, any person may request access to any unpublished
Commission document, and is not required to give a reason for
the request.
Whilst the right of access is subject to certain exceptions,
which fall into two categories, those exceptions must be interpreted
strictly, in order not to frustrate the application of the general
principle of giving the public the widest possible access to
documents. As regards the exceptions in the first category, which
include the provision `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 Commission must, before reaching a decision on a request,
consider, for each document requested, whether in the light of
the information in its possession disclosure is in fact likely
to undermine one of the those interests. If so, the Commission
is bound to refuse access to the document in question.
In order to comply with the requirements entailed by Article
190 of the Treaty, the statement of the reasons for such a decision
must contain - at least for each category of documents concerned
- the specific reasons for which the Commission considers that
disclosure of the documents requested is precluded by one of
the exceptions provided for in the first category, in order to
enable the person to whom the decision is addressed to satisfy
himself that the Commission did in fact consider the documents
in the manner described above and to assess whether the grounds
for refusal are justified.
Where the reason stated for a refusal to grant access is that
the documents requested concern a decision which is the subject-matter
of an action for annulment, accompanied only by the conclusion
that the exception for protection of the public interest (court
proceedings) is applicable, that refusal must be annulled in
that it provides no explanation, even for categories of documents,
from which it might be ascertained whether all the documents
requested do indeed fall within the scope of the exception relied
upon because they bear a relation to the decision whose annulment
is sought.
In Case T-124/96,
Interporc Im- und Export GmbH, a company incorporated under German
Law, established in Hamburg, Germany, represented by Georg M.
Berrisch, Rechtsanwalt, Hamburg, with an address for service
in Luxembourg at the Chambers of Guy Harles, 8-10 Rue Mathias
Hardt,
applicant,
v
Commission of the European Communities, represented by Ulrich
Wölker, of its Legal Service, acting as Agent, with an address
for service in Luxembourg at the office of Carlos Gómez
de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for annulment of the Commission's decision of 29
May 1996 confirming its refusal to grant the applicant access
to certain of its documents,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Third Chamber, Extended Composition),
composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh,
A. Potocki and J.D. Cooke, Judges,
Registrar: A. Mair, Administrator,
having regard to the written procedure and further to the hearing
on 21 October 1997,
gives the following
Judgment
Legal framework
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 In response to the Maastricht Declaration, the Commission undertook
a comparative survey on the rules governing public access to
information in the Member States and in some non-member countries.
The results of its survey were summarised in Communication 93/C
156/05 to the Council, the Parliament and the Economic and Social
Committee on public access to the institutions' documents (OJ
1993 C 156, p. 5, hereinafter `the 1993 communication'). In that
communication it concluded that there was a case for developing
further the access to documents at Community level.
3 On 2 June 1993, the Commission adopted Communication 93/C 166/04
on openness in the Community (OJ 1993 C 166, p. 4), setting out
the basic principles governing access to documents.
4 On 6 December 1993, the Council and the Commission drafted
and jointly adopted a Code of Conduct concerning public access
to Council and Commission documents (`the Code of Conduct') and
undertook each to take the necessary steps to implement the principles
set out in the Code of Conduct before 1 January 1994.
5 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 (OJ 1994 L 46, p. 58). Article 1 of that decision formally
adopted the Code of Conduct, the text of which is annexed to
the decision.
6 The Code of Conduct sets out the following general principle:
`The public will have the widest possible access to documents
held by the Commission and the Council.
"Document" means any written text, whatever its medium,
which contains existing data and is held by the Commission or
the Council.'
7 The factors which may be relied upon by an institution as grounds
for rejecting a request for access to documents are listed in
the Code of Conduct in the following 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.'
8 On 4 March 1994, the Commission adopted a communication on
improved access to documents (OJ 1994 C 67, p. 5, hereinafter
`the 1994 communication'), giving details of the criteria for
implementation of Decision 94/90. That communication states that
`anyone may ... ask for access to any unpublished Commission
document, including preparatory documents and other explanatory
material'. Furthermore, the Commission `guarantees that applications
for access to documents will be treated fairly and within a reasonable
period'. In that regard, the communication specifies: `Applicants
for Commission documents will receive an answer within one month'.
With regard to the exceptions provided for in the Code of Conduct,
the communication states that the Commission `may take the view
that access to a document should be refused because its disclosure
could undermine public and private interests and the good functioning
of the institution. ...' On that point, the communication stresses:
`There is nothing automatic about the exemptions, and each request
for access to a document will be considered on its own merits.'
Factual background to the case
9 Each year, the Community opens a so-called `Hilton' quota.
Under that quota, certain quantities of high-quality beef (`Hilton
Beef') from Argentina may be imported into the Community free
of any levies. In order to qualify for that exemption, a certificate
of authenticity from the Argentine authorities is required.
10 The Commission was informed that certificates of authenticity
had been found to have been falsified and, in collaboration with
the customs authorities of the Member States, initiated inquiries
into the matter in late 1992 and early 1993. When the customs
authorities came to the conclusion that falsified certificates
of authenticity had been presented to them, they took action
for post-clearance recovery of the import duty.
11 After those falsifications had been discovered, the German
authorities sought post-clearance recovery of import duty from
the applicant, which requested remission of that duty, claiming
that it had presented the certificates of authenticity in good
faith and that certain deficiencies in the control procedure
were attributable to the competent Argentine authorities and
to the Commission.
12 By decision of 26 January 1996, addressed to the Federal Republic
of Germany, the Commission considered that the applicant's request
for remission of the import duty was not justified.
13 By letter of 23 February 1996 to the Secretary-General of
the Commission and to the Directors-General of Directorates-General
(`DG') I, VI and XXI, the applicant's lawyer requested access
to certain documents relating to control procedures for imports
of Hilton Beef and to the inquiries which gave rise to the German
authorities' decisions to effect post-clearance recovery of import
duty. The request concerned 10 categories of document: (1) the
declarations of the Member States of quantities of Hilton Beef
imported from Argentina between 1985 and 1992, (2) the declarations
of the Argentine authorities of quantities of Hilton Beef exported
to the Community in the same period, (3) the Commission's internal
records drawn up on the basis of those declarations, (4) the
documents relating to the opening of the `Hilton' quota, (5)
the documents relating to the designation of the bodies responsible
for issuing certificates of authenticity, (6) the documents relating
to the agreement concluded between the Community and Argentina
concerning a reduction in the quota following discovery of the
falsifications, (7) any reports of inquiries into the Commission's
control procedures as regards the `Hilton' quota in 1991 and
1992, (8) the documents relating to inquiries into any irregularities
in imports between 1985 and 1988, (9) the views of DG VI and
DG XXI on decisions taken in other similar cases and (10) the
minutes of the meetings of the group of experts from the Member
States on 2 and 4 December 1995.
14 By letter of 22 March 1996, the Director-General of DG VI
refused the request for access as regards the correspondence
with the Argentine authorities and the records of the discussions
prior to the granting and opening of the `Hilton' quotas and
as regards the correspondence with the Argentine authorities
following the discovery of the falsified certificates of authenticity.
That refusal was based on the exception for protection of the
public interest (international relations). As regards the remaining
documents, the Director-General also refused access to those
emanating from the Member States or the Argentine authorities,
on the ground that the applicant should address its request directly
to the various authors of those documents.
15 By letter of 25 March 1996, the Director-General of DG XXI
refused the request for access to the report of the internal
inquiry into the falsifications drawn up by the Commission, basing
that refusal on the exception for protection of the public interest
(inspections and investigations) and the exception for protection
of the individual and of privacy. As regards the positions taken
by DG VI and DG XXI concerning other requests for remission of
import duty and the minutes of the meetings of the committee
of experts from the Member States, the Director-General of DG
XXI refused access to the documents on the basis of the exception
for protection of the institution's interest in the confidentiality
of its proceedings. As regards the remaining documents, he refused
access to those emanating from the Member States, on the ground
that the applicant should address its request directly to the
various authors of those documents.
16 By letter of 27 March 1996, the applicant's lawyer submitted
a confirmatory application within the meaning of the Code of
Conduct to the Secretary-General of the Commission. In that letter,
he challenged the justification for the grounds on which the
Directors-General of DG VI and DG XXI refused access to the documents.
17 By application lodged at the Registry of the Court of First
Instance on 12 April 1996, the applicant and two other German
firms brought an action for annulment of the Commission's decision
of 26 January 1996 (Case T-50/96 Primex and Others v Commission).
18 By letter of 29 May 1996, the Secretary-General of the Commission
rejected the confirmatory application. That letter (`the contested
decision') was couched in the following terms:
`Following an examination of your request, I regret to have to
inform you that I confirm the decision of DG VI and DG XXI for
the following reasons.
The documents requested all concern a Commission decision of
26 January 1996 (doc. COM (C)96 180 final) which has since become
the subject-matter of an application for annulment brought by
your representative (Case T-50/96).
Consequently, and without prejudice to other exceptions which
might justify refusing access to the documents requested, the
exception for protection of the public interest (court proceedings)
is applicable. The Code of Conduct cannot oblige the Commission,
as a party to a pending action, to provide the other party with
documents relating to the dispute.'
19 By letter lodged at the Court Registry on 25 June 1996 in
the context of Case T-50/96, the applicant requested the Court
to order production of the documents requested as a measure of
organisation of the procedure.
Procedure and forms of order sought
20 By application lodged at the Registry of the Court of First
Instance on 9 August 1996, the applicant brought the present
action. The case was allocated to a Chamber of three judges.
After hearing the parties, the Court, by decision of 2 July 1997,
assigned the case to the Third Chamber, Extended Composition,
composed of five judges.
21 Upon hearing the report of the Judge-Rapporteur, the Court
of First Instance (Third Chamber, Extended Composition) decided
to open the oral procedure without any preparatory measures of
inquiry.
22 At the hearing in open court on 21 October 1997 the parties
presented oral argument and replied to the Court's oral questions.
23 The applicant claims that the Court should:
- annul the contested decision;
- declare that the Commission is not entitled to refuse access
to the documents specified in the letter of 23 February 1996
from the applicant's lawyer to the Secretary-General of the Commission;
and
- order the Commission to pay the costs. 24 The Commission contends
that the Court should:
- dismiss the application for directions to be issued as inadmissible;
- dismiss the remainder of the application as unfounded; and
- order the applicant to pay the costs.
The first head of claim, seeking annulment of the contested decision
25 In support of its application, the applicant puts forward
three pleas in law. The first alleges infringement of the Code
of Conduct and of Decision 94/90. The second alleges infringement
of Article 190 of the Treaty. The third plea, which was put forward
at the hearing, alleges infringement of the right to a fair hearing
in that the Secretary-General relied, in the contested decision,
on a new ground for refusing access which had not previously
been put forward.
26 In the circumstances of this case, it is appropriate to examine
the first two pleas together.
The first and second pleas taken together, alleging infringement
of the Code of Conduct and of Decision 94/90 and infringement
of Article 190 of the Treaty
Arguments of the parties
- Infringement of Decision 94/90 and the Code of Conduct
27 The applicant notes, first of all, that the Commission refused
its request for access to the documents on the sole ground that
the exception for protection of the public interest (court proceedings)
was applicable. By so doing, however, the Commission infringed
the provisions relating to the exceptions to the right of access
to documents laid down in the Code of Conduct and thus in Decision
94/90.
28 It points out that Decision 94/90 and the Code of Conduct
are binding on the Commission. Those measures place a legal obligation
on the Commission to give the public the widest possible access
to documents held by it (Case T-105/95 WWF UK v Commission [1997]
ECR II-313, paragraph 55, and Case T-194/94 Carvel and Guardian
Newspapers v Council [1995] ECR II-2765, which concerns the equivalent
decision adopted by the Council - Council Decision 93/731/EC
of 20 December 1993 on public access to Council documents (OJ
1993 L 340, p. 43)).
29 The exceptions to the right of access to documents should
be interpreted strictly in order not to frustrate the specific
aim of the Code of Conduct, which is to give the public `the
widest possible access to documents'.
30 The applicant submits that the Commission is not entitled
to apply the exceptions in a general way. In order to determine
whether disclosure of a document is precluded by one of the exceptions,
the Commission should first weigh the interests which the exception
in question is intended to protect against the overall aim of
the Code of Conduct and then establish for each document the
`imperative reasons' justifying application of the exception
(Case C-2/88 Imm. Zwartveld and Others [1990] ECR I-4405, paragraphs
11 and 12).
31 The Commission is wrong to consider, relying on the exception
for protection of the public interest (court proceedings), that
it is empowered to refuse access to any document relating to
a decision which is the subject of an action for annulment. Such
a position by the Commission would tend to interfere with the
judicial process.
32 Having refused access to the documents requested on the ground
that they might be used against the Commission as the defendant
in court proceedings, the contested decision could have the consequence
that a number of Commission decisions might escape judicial review.
As a public administration acting in the general interest, the
Commission should not be entitled to withhold texts which it
adopts from such review by keeping them secret.
33 The exception in question should be interpreted in accordance
with point 2.2 of the 1993 communication, which lists the interests
supposed to be protected by that exception in the laws of the
Member States. In fact, it covers only information likely to
damage the investigation of criminal offences and the prosecution
of offenders.
34 Finally, the Commission's position in the present case is
contradicted by its observations submitted in the Primex case,
referred to above, on the request for measures of organisation
of the procedure seeking production of those same documents.
In that case, the Commission considered that the documents were
not relevant to the proceedings.
35 Whilst accepting that it is important from a political point
of view for the public to have access to documents held by the
Community institutions, the Commission questions whether the
principle of access to documents, as set out in the declarations
on transparency, is important from a legal point of view. As
regards the legal value of Decision 94/90, it stresses that that
decision was adopted under the framework of its power of internal
organisation, which authorises it to take appropriate measures
in order to ensure its internal operation in conformity with
the interests of good administration (Case C-58/94 Netherlands
v Council [1996] ECR I-2169, paragraph 37).
36 The Commission submits, first, that the exception for protection
of the public interest (court proceedings) authorises it, in
the context of Decision 94/90, not to make available to the public
- and to the applicant - all documents relating to pending proceedings.
For that exception to be applicable, it considers it is enough
that the documents requested concern the pending proceedings
and relate to their subject-matter, as is the case here.
37 Any other interpretation would be likely seriously to jeopardise
the right to a fair hearing and thus the public interest. Even
if its rights as a defendant might well not be harmed by the
disclosure of each and every document, the Commission considers
that it would not be able to prepare an adequate defence if,
as the applicant claims, it had to prove the importance of each
document for the legal proceedings. It denies that it has to
put forward `imperative reasons' in order to be able to refuse
a request for access to documents.
38 The 1993 communication does not lead to any different interpretation.
The exception in the Code of Conduct is wider in scope than the
equivalent exceptions under national law, since the Code of Conduct
does not specify the restrictive particular of `judicial secrecy'
added in the description of the equivalent exceptions under national
law.
39 Secondly, the Commission submits that the question whether
the applicant may have access to the documents requested must
be settled on the basis of the Rules of Procedure of the Court
of First Instance concerning measures of organisation of the
procedure and not on that of the Code of Conduct. That code is
not, and is not intended to be, the appropriate text for deciding
the question raised here.
40 Since measures of organisation of the procedure have been
requested by the applicants in Primex, referred to above, it
is for the Court to decide to what extent it can grant that request
on the basis of its Rules of Procedure. The question whether
the documents requested by the applicant are really relevant
to the action brought against the decision of 26 January 1996
(see paragraph 12 above) can only be decided in the context of
that action.
- Infringement of Article 190 of the Treaty
41 The applicant submits that the statement of reasons in the
contested decision does not meet the requirements of Article
190 of the Treaty.
42 In the first place, the wording of the contested decision
does not reveal whether the special features of the case in issue
were analysed. Secondly, the Commission did not specify the reasons
for which it considers that the exception for protection of the
public interest (court proceedings) is applicable.
43 In particular, the Commission failed, in breach of its obligations,
to state for each document the `imperative reasons' for which
disclosure would jeopardise protection of the public interest.
44 Finally, the applicant submits that the Commission may not
rely in this case on other exceptions provided for in the Code
of Conduct because the contested decision contains an inadequate
statement of reasons in that regard.
45 The Commission denies that it has infringed Article 190 of
the Treaty. The statement of reasons clearly summarises the essential
point. As regards the applicant's regret that the decision does
not analyse the `special features' of the case, the Commission
considers that it is not obliged to prove, for each and every
document, that disclosure could damage the public interest.
Findings of the Court
46 Decision 94/90 is a measure conferring on citizens a right
of access to documents held by the Commission (WWF UK, cited
above, paragraph 55).
47 The fact that Article 162 of the Treaty was taken as the legal
basis for that decision does not affect that finding. Even if
Decision 94/90 was adopted under the Commission's powers of internal
organisation, there is nothing to prevent rules on the internal
organisation of the work of an institution having legal effects
vis-à-vis third parties (Netherlands v Council, cited
above, paragraph 38).
48 From its overall scheme, it is clear that Decision 94/90 is
intended to apply generally to requests for access to documents.
By virtue of that decision, any person may request access to
any unpublished Commission document, and is not required to give
a reason for the request (see the 1993 and 1994 communications).
49 In accordance with the Code of Conduct, however, the right
of access to documents is subject to certain exceptions. Those
exceptions must be interpreted strictly, in order not to frustrate
the application of the general principle of giving the public
`the widest possible access to documents held by the Commission'
(WWF UK, cited above, paragraph 56).
50 As was held at paragraph 57 of the WWF UK judgment, the Code
of Conduct contains two categories of exception (see paragraph
7 above).
51 As regards the first category, to which the exception relied
upon in the present case belongs, it provides: `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)'.
52 The use of the form `could' means that before deciding on
a request for access to documents the Commission must consider,
for each document requested, whether in the light of the information
in its possession disclosure is in fact likely to undermine one
of the interests protected under the first category of exceptions.
If so, the Commission is bound to refuse access to the document
in question, that being a case in which the Code of Conduct provides
that the institutions `will refuse' access.
53 Such a decision on the part of the institution must state
the reasons on which it is based, in accordance with Article
190 of the Treaty. It has consistently been held that the reasoning
required by that provision must show clearly and unequivocally
the reasoning of the Community authority which adopted the contested
measure so as to enable the persons concerned to ascertain the
reasons for the measure in order to protect their rights, and
the Court to exercise its power of review (Case C-278/95 P Siemens
v Commission [1997] ECR I-2507, paragraph 17; WWF UK, cited above,
paragraph 66).
54 The statement of the reasons for a decision refusing access
to documents must therefore contain - at least for each category
of documents concerned - the specific reasons for which the Commission
considers that disclosure of the documents requested is precluded
by one of the exceptions provided for in the first category of
exceptions (WWF UK, paragraphs 64 and 74), in order to enable
the person to whom the decision is addressed to satisfy himself
that the Commission did in fact consider the documents in the
manner described in paragraph 52 above and to assess whether
the grounds for refusal are justified.
55 In the present case, however, the contested decision contains
only the conclusion that the exception for protection of the
public interest (court proceedings) is applicable (see paragraph
18 above). It provides no explanation, even for categories of
documents, from which it might be ascertained whether all the
documents requested, some of which are several years old, do
indeed fall within the scope of the exception relied upon because
they bear a relation to the decision whose annulment is sought
in the Primex case, referred to above.
56 The statement of reasons in the contested decision is therefore
inadequate.
57 It follows that the contested decision must be annulled, without
there being any need to rule on the plea alleging infringement
of the right to a fair hearing.
The second head of claim, seeking a declaration that the Commission
is not entitled to refuse access to the documents specified in
the applicant's letter of 23 February 1996 to the Secretary-General
of the Commission
58 In support of this head of claim, the applicant submits that
under the Code of Conduct it is for the Secretary-General, when
dealing with a confirmatory application, to review the initial
rejection of the request for access to the documents in question.
He must therefore take a final decision as to the grounds on
which he intends to base final rejection of the request.
59 In the applicant's view, therefore, it would deprive the procedure
laid down in Decision 94/90 of any practical effect if, following
a judgment annulling the decision, the Commission were allowed
in a subsequent administrative procedure to rely on different
grounds to justify rejection of a request for access to the documents.
If that were so, the applicant would be obliged to bring the
matter before the Court again, a requirement which it considers
unacceptable.
60 In order to avoid further court proceedings, the applicant
therefore requests the Court to find that the Commission has
no grounds for refusing access to the various documents referred
to in its letter of 23 February 1996 (see paragraph 13 above),
since it has exhausted its right to refuse access to those documents
by relying on other grounds.
61 This head of claim, which seeks the issue of directions to
the Commission, is inadmissible, since the Community judicature,
when exercising the jurisdiction to annul acts conferred on it
by Article 173 of the Treaty, is not entitled to issue directions
to the Community institutions (see, for example, Case 15/85 Consorzio
Cooperative d'Abruzzo v Commission [1987] ECR 1005, paragraph
18, and Case T-346/94 France-Aviation v Commission [1995] ECR
II-2841, paragraph 42).
Costs
62 Under Article 87(2) of the Rules of Procedure, 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 applicant
has applied for costs and the Commission has essentially been
unsuccessful, the Commission must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Third Chamber, Extended Composition)
hereby:
1. Annuls the Commission's decision of 29 May 1996 refusing the
applicant access to certain documents held by the Commission;
2. Dismisses the application as inadmissible in so far as it
seeks the issue of directions to the Commission;
3. Orders the Commission to pay the costs. |
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