Recent trends and developments in the case law of EU Courts on access to documents

Abstract

Recent case law of EU Courts on access to documents bring some interesting developments concerning the obligations of applicants and institutions, both with regard to formal requirements and substantive elements. EU Courts retained a strict interpretation of the exceptions concerning ongoing procedures under Regulation No 1049/2001 and refrained from recognizing new general presumptions of confidentiality under ECB Decision 2004/258. Clarifications have been provided, by EU Courts, on the interest to challenge a refusal decision in case of subsequent disclosure of the requested documents and on the interests concerned by a request to remove from the file undisclosed documents.

Introduction

The present article addresses some of the latest trends and developments on access to documents before the Court of Justice (Court) and the General Court (GC) of the European Union (EU) (jointly, EU Courts).

Access to documents constitutes a well-established principle in EU law enshrined in Article 42 of the Charter of Fundamental Rights of the European Union, which provides that “[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium”. Article 15(1) of the Treaty on the Functioning of the European Union (TFEU) stresses that, in order to promote good governance and ensure the participation of civil society, the EU’s institutions, bodies, offices and agencies shall conduct their work as openly as possible. Accordingly, under paragraph 3 of the same provision, any citizen of the EU, or any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of EU’s institutions, bodies, offices and agencies, subject to principles and conditions defined by means of a regulation adopted through the legislative procedure. As far as the European Parliament, the Council and the Commission are concerned, these principles and conditions are set out in a single piece of legislation which is in force and is applied without any modification since 2001: Regulation No 1049/2001.1 Other EU institutions, as the Court of Justice of the European Union (CJEU)2 and the European Central Bank (ECB)3, have adopted their own decisions regulating access to documents.4

Despite a steady normative framework, EU institutions constantly face new challenges in answering to requests for access to documents, in line with the evolution of their competences and the increased aspiration of today’s society for transparency. This is reflected in the case law of EU Courts, which are constantly called to examine new aspects of this field. Moreover, since the normative framework has not been subject to any amendment since its entry into force, it is the administrative practice of EU institutions and the case law of EU Courts that shape the interpretation of the current provisions. Over the past few years, EU Courts have been seized on a number of occasions relating to access to documents cases and they delivered a number of rulings in this area: 22 rulings both in 2019 and in 2020, 13 rulings in 2021 (with 36 new cases introduced in that the same year)5 and about 16 rulings delivered in 2022.6 It is worth noting that most of the actions brought before the EU Courts concern the Commission, but more recently decisions taken by the ECB have also given rise to litigation on access to its documents.

The recent case law in relation to Regulation No 1049/2001 and ECB Decision 2004/258 provides an opportunity to examine selectively some interesting elements in particular as regards the following issues:7 the obligations of the applicant making a request for access to documents and of the institution receiving such a request (2); the conditions of application of the exceptions relating to the protection of (non-judicial) procedures before EU institutions (3); and the assessment of the interests concerned in some particular cases (4).

The obligations of the applicant making a request for access and of the institution receiving the request

At the outset, it must be recalled that Regulation No 1049/2001 has a wide scope. As constantly reiterated by EU Courts, “[it] seeks […] to give the public a right of access to documents of the institutions which is as wide as possible”.8 This is because “the right of public access to documents of the institutions is related to the democratic nature of those institutions”.9 This is reflected in its large and pragmatic material scope of application, since, for the purpose of that regulation, ‘document’ is “any content whatever its medium”, concerning any matter “falling within the institution’s sphere of responsibility”10 and “all areas of activity”, which is “drawn up or received” by the institution and that it is “in its possession”.11

The same flexible approach can be found in the application of Article 6 of Regulation No 1049/2001 on applications for access (as well as Article 6(1) of ECB Decision 2004/258). Indeed, an application can “be made in any written form”, including “electronic form”, and in any of the languages mentioned in Article 55 of the Treaty on European Union (TEU).12 What is more, Article 6 of Regulation No 1049/2001 clearly indicates that the applicant “is not obliged to state reasons for the application”13 and the Court specifically relied on this absence of a requirement to state reasons, in order to underline that Regulation No 1049/2001 confers a “very extensive right of access to the documents of the institutions concerned”.14 Therefore, except from the requirement that an application for access is in a written form, such application is subject to no other particular formal requirements, nonetheless the applicant needs to draft it “in a sufficiently precise manner to enable the institution to identify the document”. This is understandable, because for a request to have a useful effect, the institution must be able to identify the documents concerned. However, if the application is considered by an institution as not sufficiently precise, the institution cannot simply reject it, but it has to proactively ask the applicant for clarifications and even assist the applicant for this purpose.15

Against this background, a very recent judgment delivered by the Court in 2022 (on appeal against an order of the GC), in the case Dragnea v Commission, adds a further level of flexibility to this setting, by making clear that an applicant requesting access does not even need to rely on Regulation No 1049/2001 in its request. According to the Court, there is no provision in Regulation No 1049/2001 requiring an applicant to specify the legal basis of its application and that the absence of any obligation to make express reference to Regulation No 1049/2001 is consistent with the objective pursued by that regulation, i.e. to ensure the widest possible access to documents.16

It is interesting to note that the above-mentioned case originates from a request for access to documents concerning an investigation of the European Anti-Fraud Office (OLAF). OLAF replied to the request by indicating that, since the applicant was not a “person concerned” by the investigations, it could not rely on the procedural rights referred to in Article 9 of Regulation No 883/201317 and that, therefore, no access could be granted to the requested documents. The applicant brought an action for annulment before the GC, alleging a breach both of Article 42 of the Charter of Fundamental Rights and of Regulation No 1049/2001. The GC dismissed the action as inadmissible, by holding, in essence, that OLAF’s reply was not a definitive act adopted under Regulation No 1049/2001 and thus not an act against which an action for annulment may be brought. The GC noted that, since the applicant’s request referred to Regulation No 883/2013, OLAF had rightly considered it as a request for access to the investigation file pursuant to that regulation and not as a request for access to documents pursuant to Regulation No 1049/2001, given that the applicant only relied on Regulation No 1049/2001 for the first time before the GC.18 Against this background, the GC found that OLAF made no mistake by not informing the applicant of the right to submit a confirmatory application under Regulation No 1049/2001.19

The applicant brought an appeal before the Court against the order of the GC. The Court, after having clarified that the applicant had no obligation to indicate the legal basis of its application for access to documents, applied this finding to the case at hand. It held that, despite the absence of references to Regulation No 1049/2001 in the applicant’s request, OLAF was required, inter alia, to examine it in light of Regulation No 1049/2001 and to inform the applicant of its right to make a confirmatory application under that regulation.20 The Court rejected as irrelevant the fact that, in its request, the applicant referred to Regulation No 883/2013, as well as the fact that the requested documents related to an OLAF investigation and were covered by that regulation, since Regulation No 1049/2001 can cover access to documents relating to an administrative procedure governed by another EU act.21 Therefore, considering that OLAF failed to inform the applicant of its right to present a confirmatory application, the Court held that the applicant was entitled to consider that, in its reply, OLAF had established its definitive position under Regulation No 1049/2001 and that, as a result, such reply could be the subject of an action for annulment.22 The Court thus annulled the GC order.

It is obvious from this case that the Court confirms its line of case law according to which, in order to achieve the widest possible access, applications for access should not be subject to undue formal requirements, thus easing the applicants’ obligations. Accordingly, the institutions are required to examine with due care, under Regulation No 1049/2001, any application for access, even when applications for access do not refer to that regulation.

The protection of (non-judicial) procedures before EU institutions

As a preliminary point, it is worth recalling that the right of access to documents is not absolute, but it is subject to exceptions, which must however be interpreted and applied strictly.23 These exceptions are set out in Article 4 of Regulation No 1049/2001. According to paragraph 1 of this provision, such exceptions relate to documents for which disclosure would “undermine” a public interest, such as public security, defense or international relations, or the privacy and integrity of the individual.24 In these cases, if disclosure undermines the interests protected by the exception, the refusal to access is “mandatory”, without the need for the institution to proceed to a balancing of the interests protected against other interests.25 For this reason, the recent case law of the GC dealing, in substance, with the analogous exceptions established in Article 4(1) of ECB Decision 2004/258 has defined such exceptions as being “absolute”.26 As regards exceptions under paragraphs 2 and 3 of Article 4 of Regulation No 1049/2001, they concern interests the undermining of which does not necessary imply that access is refused, since there can be “an overriding public interest in disclosure”.27 These exceptions relate to documents for which disclosure would “undermine” the protection of “commercial interests”, of “court proceedings and legal advice”, and of “the purpose of inspections, investigations and audits”28 as well as to documents for which disclosure would “seriously undermine” the “institution’s decision-making process”.29

The case law presented in the present article concerns the two last exceptions quoted in the previous paragraph, which, in substance, aim to protect certain procedures when the disclosure of documents would affect them, unless there is an overriding public interest in disclosure. These exceptions specifically intend to protect the purposes of inspections, investigations and audits (under Article 4(2), third indent, of Regulation No 1049/2001) and the institution’s decision-making process (under Article 4(3) of Regulation No 1049/2001). Some recent judgments delivered by EU Courts deal, either directly or indirectly, with the common question of whether such procedures were actually ongoing at the time of the refusal decisions adopted by the Commission and, therefore, of whether the institution concerned correctly relied on the exception it invoked. Other recent judgments, delivered in the context of the Banking Union, address some novel issues regarding access to documents held by the ECB in the framework of its procedures.

The protection of the decision-making process under Regulation No 1049/2001

At the outset, it must be recalled that article 4(3) of Regulation No 1049/2001 is divided in two sub-paragraphs, each concerning a different procedural situation. The first sub-paragraph concerns the situation where the decision-making process is ongoing, or, to use the wording of the Regulation, where “the decision has not been taken by the institution” on the matter to which the document relates. The second sub-paragraph concerns the situation where the decision-making process is closed, that is to say, “after the decision has been taken”.30 The question of whether a decision-making process is ongoing or closed is thus essential in order to apply the exception provided for in Article 4(3), since different rules apply in the two situations and they are more strict when the process has been closed.31

This question was at stake in two recent judgements of the GC, delivered in 2022, where the Commission relied on the exception concerning the ongoing decision-making process (i.e. the first sub-paragraph of Article4(3) of Regulation), a choice which was challenged by the applicants in both cases.

In case Saure v Commission, a German journalist requested the Commission to give access to the correspondence that the institution had exchanged both with BioNTech (a German company involved in the production of COVID-19 vaccines) and with the German authorities concerning BioNTech COVID-19 vaccine and its distribution calendar.32 The Commission refused access to most of the requested documents, by relying, inter alia, on the exception concerning the protection of the ongoing decision-making process under the first sub-paragraph of Article 4(3) of Regulation No 1049/2001.33 The applicant challenged the Commission decision before the GC. It argued that the decision-making process at stake was closed, since, as confirmed by the Commission, the negotiations with BioNTech were concluded, and that the Commission was wrong to assess the decision-making process globally by also considering negotiations with other COVID-19 vaccines producers. Conversely, in the applicant’s view, each negotiation procedure had to be assessed individually; otherwise, access would be indefinitely postponed, since there would be always new vaccines to negotiate.34

Based on an analysis of the specific circumstances of the case, the GC rejected the applicant’s claim. First, the GC considered that, even if negotiations with some producers were concluded, the undisclosed information was aiming at protecting the ongoing negotiations with other producers. The GC considered that the retention of this information was justified in order to avoid revealing the content of certain provisions of the agreements already made that could weaken the position of the Commission in the ongoing negotiations. Indeed, the GC considered that such information were likely to be relevant not only for the closed negotiations, but also for the others negotiations, and that they were likely to interest the Commission’s counterparties (vaccine producers).35 Second, the GC took into account the fact that the various negotiations with vaccines producers were part of an overall objective of the EU to have at its disposal a portfolio of vaccines and of advanced purchase contracts, in order to cover different technologies of development of vaccines.36 On the basis of these elements, the GC concluded that, in the circumstances of the case, the negotiations with vaccine producers were “a unitary whole and a single decision-making process” under the first sub-paragraph of Article 4(3) of Regulation No 1049/2001 and that the Commission relied correctly on that exception.37 However, the GC stressed that this provision “concerns only ongoing processes” and that the Commission would not be able to rely indefinitely on the constitution of a portfolio of COVID-19 vaccines.38 In other words, even if the decision-making process was ongoing at the time of the request, it could not be excluded that the information covered by the exception at that specific moment might have to be disclosed at a subsequent point in time.39

In case Pollinis v Commission, the GC arrived to the opposite conclusion in light of the circumstances of that case. A French NGO requested the Commission to give access to documents (essentially emails) recording Members States individual positions on the 2013 Guidance Document of the European Food Safety Authority (EFSA) on the risk assessment of plant protection products on bees (2013 guidance document on bees). These documents were exchanged within the Standing Committee on Plants, Animals, Food and Feed (SCoPAFF), a comitology committee operating under Regulation No 182/2011.40 The Commission refused access to the requested documents by relying essentially on the first sub-paragraph of Article 4(3) of Regulation No 1049/2001, concerning the protection of the ongoing decision-making process.41 The applicant challenged the Commission decision before the GC. In its view, reliance on that exception was not justified in the circumstances of the case and was contradicted by the Commission statement that the decision-making process was ‘halted’. The applicant argued that this statement was confusing and misleading, since the decision-making process had to be considered as either ‘halted’ or ‘ongoing’, and that a decision-making process on a revised version of the 2013 guidance document on bees would concern a different document.42

After examination of the decision-making process at stake, the GC upheld the applicant’s claim. It considered that, contrary to the position taken by the Commission, the decision-making process to which the requested documents related to, was not ongoing at the time of the contested decisions. The GC found that, even if the requested documents related to a decision-making process which lasted from 2013 to 2019 and had the purpose of implementing, either fully or partially, the 2013 guidance document on bees, at the time of the contested decision, in 2020, there was no longer any decision-making process aiming at implementing that guidance document.43 According to the GC, the relevant circumstances of the case demonstrated that the Commission had implicitly but necessarily decided not to implement the 2013 guidance document on bees. The GC also noted that the Commission had even requested EFSA to revise that document, such a revision implying the impossibility to determine the content of any revised guidance document, the form of its possible adoption or the procedure that might be followed for this purpose.44 The GC thus concluded that, since the decision-making process relating to the 2013 guidance document on bees had been closed, the Commission could not validly rely on the exception provided for in the first sub-paragraph of Article 4(3) of Regulation No 1049/2001, which seeks to protect the institution’s decision-making process relating to a matter where the institution has not yet taken a decision.45 The GC considered that the reliance on an inapplicable exception in the circumstances of the case was a sufficient ground to annul the contested decisions.46

Taken together, these two cases appear to demonstrate that the applicability of the exception of the first sub-paragraph of Article 4(3) of Regulation No 1049/2001 depends on the specific circumstances of each decision-making process concerned. Indeed, as the GC clearly explained in case Saure v Commission, “if the institution concerned decides, on the basis of the exception concerning the protection of the decision-making process, to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the protection of that process and demonstrate that the risk of that undermining must be reasonably foreseeable and must not be purely hypothetical”.47 In other words, the assessment that the institutions are requested to make needs to have a specific and concrete dimension relating to the characteristics of the particular process at stake, and EU Courts, based on the arguments put forward before them, will verify whether the institution correctly relied on such exceptions.

The protection of the purpose of inspections, investigations and audit under Regulation No 1049/2001

The exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 allows refusing access to documents for which disclosure would undermine the purpose of inspections, investigations and audits. The question of whether the requested documents fall within its scope of application is often raised before EU Courts, all the more so that this exception is usually applied through reliance on general presumptions.

Before moving to the case law concerning specifically this exception, it is worth recalling briefly how general presumptions work in the context of application of Regulation No 1049/2001 as the Court explained in well-established case law. If an EU institution seized with a request for access decides to refuse it on the basis of an exception, in principle, it must explain how access to that document could specifically and actually undermine the interest protected by that exception. However, it is open to the institution to base its refusal on general presumptions “which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature”.48 In other words, requests for access to documents of the same nature can be refused on the basis of “general presumptions” originating from the fact that, for such documents, similar considerations are likely to apply in order to refuse access.49 As explained by the Court, the general presumptions that have been admitted in the case law relate to “a set of documents which were clearly defined by the fact that they all belonged to a file relating to ongoing administrative or judicial proceedings”.50 In addition, general presumption are rebuttable, in the sense that they do not exclude the right of an applicant to demonstrate that a certain document is not covered by a presumption, or that, under Article 4(2) of Regulation No 1049/2001, there is an higher public interest justifying disclosure.51

Against this background, as far as the exception under consideration is concerned, in a recent judgment delivered in 2021 in case Homoki v Commission, the GC has drawn up a pedagogic list of general presumptions recognized by EU Courts “for the purpose of the interpretation of the third indent of Article 4(2) of Regulation No1049/2001”.52 Indeed, a large part of the presumptions recognized by EU Courts concerns this very exception.

In this context, the GC thus recalled that the Court had acknowledged the existence of such general presumptions concerning:

• the documents in the administrative file relating to a procedure for reviewing State aid;

• the documents exchanged between the Commission and the notifying parties or third parties in a merger control procedure;

• the documents concerning an infringement procedure during the pre-litigation stage;

• the documents in a file relating to a proceeding pursuant to Article 101 TFEU; and

• the documents relating to what is known as an ‘EU Pilot’ procedure.53

In addition, the GC recalled that it acknowledged itself the existence of such general presumptions concerning:

• the documents submitted, pursuant to Article 11(4) of Regulation No 1/2003,54 by the national competition authorities to the Commission;

• the documents relating to a procedure for abuse of a dominant position in which no further action was taken; and

• the documents from the administrative file of an OLAF investigation.55

Two recent judgments of the GC deal with these general presumptions and provide some further clarifications both at general and specific level.

In a judgment delivered in 2020 in case Campbell v Commission, the GC made explicit some general obligations for the institution which intends to rely on a general presumption. The case arose from an application to obtain access to documents held by the Commission concerning Ireland’s compliance (or non-compliance) with its obligations under certain specific Framework Decisions of the Council. The Commission rejected the application. It indicated that the requested documents were part of the files of three EU Pilot procedures, which had been closed but in relation to which no decision was yet taken concerning the opening of a formal infringement procedure, and that, therefore, access had to be refused for all the documents of those files, based on a general presumption.56 The applicant challenged the Commission decision before the GC. It argued that, despite the fact that such a presumption was rebuttable, in the circumstances of the case, it was placed under an unfair burden of proof, which made the presumption irrebuttable, since it was required to establish that the disclosure of the requested documents did not present any risk, while having no certainty about the existence, the nature, the form or the content of those documents.57

The GC sided with the applicant. It underlined that the application of a general presumption does not permit the institution to reply, in a global manner, that all the requested documents are part of a file covered by a general presumption, without identifying or drawing up a list of these documents. The GC stated that, without such identification, the applicant would not be able to argue that a document is not covered by the presumption and thus to rebut that presumption, which would became irrebuttable.58 Accordingly, the GC underlined that it is only after having identified the documents covered by the request for access that the institution can classify them into categories in light of “their common characteristics, their same nature or their belonging to the same file” and can then apply a general presumption to those documents.59 The GC thus stressed that, even if the application of a general presumption dispenses the institution from an individual examination of each document, it does not exempt the institution from indicating which documents it identifies as being covered by the presumption and from providing the list of these documents to the applicant,60 indicating, for instance, their date, their nature and the administration who drafted them, without having to disclose their content.61

The GC moved on to apply these principles to the case at hand. It considered that, in order to rely correctly on the general presumption concerning documents relating to an EU Pilot procedure, the Commission was required, in the refusal decision, firstly, to identify the documents covered by the request for access, secondly, to classify them (by category or as part of a file) and, finally, to find that they were part of an EU Pilot procedure.62 Having ascertained that, in the case at hand, the Commission failed to identify the documents covered by the request for access, the GC concluded that the institution did not apply correctly the general presumption and annulled the Commission refusal decision.63

In its judgment delivered in 2021 in the above-mentioned case Homoki v Commission, the GC further clarified the scope of application of the general presumption concerning the administrative file of an OLAF investigation. After having recalled that the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 applies only if the disclosure may endanger “the completion” of inspections, investigations or audits,64 the GC added that the presumption concerning the administrative file of an OLAF investigation can be applied when the investigation “is ongoing” or “has been just closed” and, in the latter case, when the national authorities have not yet decided, within a reasonable period, the action to be taken to follow-up an OLAF investigation report.65 Applying these principles to the case at hand, the GC noted that, the procedures taken at national level as a follow-up to the OLAF report had been closed, including judicial ones, and that it was no longer justified to rely on the general presumption in order to protect the purpose of the investigation. The GC concluded that the Commission erred in relying on such a presumption and annulled the refusal decision.66

Finally, in a very recent judgment delivered by the GC in 2022 in case Agrofert v Parliament the question of the applicability of the exception at stake in the framework of an ongoing investigation was addressed. The case concerned a request for access to Commission’s documents held by the Parliament relating, in essence, to an investigation on the use of European funds. The Parliament refused access based on the third indent of Article 4(2) of Regulation No 1049/2001, since the requested documents (a Commissioner’s letter and a Commission’s final audit report) were established by the Commission in the framework of an ongoing investigation concerning infringement of EU law by a Member State.67 The applicant challenged the refusal decision. It argued, inter alia, that the Parliament could not claim that disclosure would have undermined the purpose of the ongoing investigation, since the investigation already achieved its purpose.68 According to the applicant, the investigation had been closed, and the sole implementation of the recommendation contained in the audit report did not constitute an ‘ongoing investigation’.69 The GC rejected the applicant’s claim. It considered that the implementation of the audit recommendation constituted a step for the achievement of the purposes of the investigation and that, therefore, the protection of the purposes of the investigation provided for in the third indent of Article 4(3) of Regulation No 1049/2001 did not end with the adoption of the final report or with a follow-up letter, but went further to include the exchanges with the Member State in order to implement the recommendations.70 The GC thus concluded that the Parliament made no mistake in considering that the requested documents related to an ongoing investigation whose purposes still needed to be protected.71

The protection of confidential information in the procedures of the ECB under Decision 2004/258

Since the establishment of the Banking Union, EU Courts have been more often asked to review ECB decisions concerning requests for access to documents. In this context, both the Court and the GC have clarified since the judgment in case De Masi and Varoufakis v ECB, that the regime provided for in ECB Decision 2004/258 is different from that of Regulation No 1049/2001.72

In that particular case, in so far as the exception provided for in Article 4(3) of ECB Decision 2004/258 relating to the protection of “documents for internal use” is concerned, the GC underlined that it is different from the exception provided for in Article 4(3) of Regulation 1049/2001 relating to the protection of the institutions’ decision-making process: ECB Decision 2004/258 does not require that disclosure could “seriously undermine” the decision-making process and there is no distinction between ongoing and closed processes.73 The GC actually considered that exception is intended to protect an internal space to think of the ECB, permitting confidential discussion within its decision-making organs, and a space for confidential discussions between the ECB and national central banks.74 On appeal, the Court confirmed the GC approach, emphasizing the differences between Regulation 1049/2001 and Decision 2004/258.75

Against this background, a recent series of cases concerning the ECB deals with the exception provided for in Article 4(1)(c) of ECB Decision 2004/258, relating to the protection of “the confidentiality of information that is protected as such under Union law”, and with the admissibility of a presumption of confidentiality based on that exception.

In case Malacalza Investimenti v ECB, the applicant submitted to the ECB a request for access to documents concerning the placing under temporary administration of Banca Carige, a bank of which it was the main shareholder. The ECB refused to grant access based on Article 4(1)(c) of Decision 2004/258. In particular, it considered that provision contained a general presumption covering all cases coming within the scope of its prudential supervision task. The ECB inferred the existence of such a presumption from the fact that the EU legislature had defined rules imposing professional secrecy on persons working for the prudential supervisory authorities and requiring confidential information held by these persons to be disclosed only in summary or aggregated form.76 The applicant challenged the ECB refusal decision before the GC. However, since the ECB lodged late its defense, the GC rendered a judgment by default in 2020. Having thus only to examine, in a procedure by default, whether the applicant’s arguments were not manifestly lacking any foundation in law,77 the GC limited itself to note that the existence of a general presumption of confidentiality based on Article 4(1)(c) of Decision 2004/258 had not been recognized or established by the case law and thus upheld the application, leading to the annulment of the ECB decision.78 Under the particular circumstances of this case, due to the fact that the GC could not have recourse to ECB’s arguments, it had to limit its appreciation to the law as it stood, and was therefore not in a position to examine whether a new general presumption could have been acknowledged.

However, it was not long before this question was brought again before the GC in case Aeris Invest v ECB and the GC was able to examine it in its judgment delivered in 2021. This case originated from another ECB refusal to grant access to documents by relying on a general presumption of confidentiality based on Article 4(1)(c) of Decision 2004/258. This time, the GC invalidated expressly the ECB approach. The GC reasoning is based on three pillars, which it is worth examining.

Firstly, the GC underlined that a general presumption of confidentiality based on Article 4(1)(c) of Decision 2004/258 would not have a clearly and precisely defined scope of application, in so far as the reference to “Union law” contained therein refers generally to other rules which are applicable in the context where the requested documents were established.79 The GC thus considered that a general presumption based on a provision for which the scope of application is not clearly determined would not comply with the requirement of legal certainty, nor with the principle that general presumptions, being exceptions to the right of access, must be interpreted strictly.80

Secondly, the GC observed that it ensues from the case law of the Court that information detained by national financial supervision authorities have to be considered confidential if two conditions are met, i.e. when they are not public and when their disclosure would risk to undermine the interests of the information provider or those of third parties or the correct functioning of the supervisory activities. It considered that this approach was transposable, in the case at hand, to information detained by the ECB, which has therefore to refuse access if those conditions are met. The GC noted that the assessment of the two conditions “necessarily requires a concrete and individual examination of each information concerned”, which cannot be circumvented through the application of a general presumption.81

Thirdly, as already mentioned in introducing Sect. 3 above, the GC relied on the fact that the exception at stake is “absolute”, in the sense that it does not contemplate a balancing exercise with an overriding public interest. Therefore, the GC took the view that a general presumption based on that exception would be incompatible with the possibility, recognized in the case law, to rebut a general presumption by relying on an overriding public interest.82

On the basis of this three step reasoning, the GC excluded the existence of a general presumption based on Article 4(1)(c) of Decision 2004/258. However, the GC examined whether, independently from the reliance on such general presumption, the ECB correctly considered that the requested information was confidential and thus falling within the scope of application of that exception: it concluded that information was indeed confidential and thus covered by that exception.83

Even more recently, the GC was faced again with the admissibility of a general presumption based on Article 4(1)(c) of Decision 2004/258 in two judgments delivered in 2022, concerning again access to documents in the framework of the procedure having led to the temporary administration of Banca Carige.

More specifically, in case Corneli v ECB, the applicant, a minority shareholder of Banca Carige, requested the ECB to give access to some documents concerning the placing into temporary administration of that bank. The ECB refused access by relying on a general presumption based on Article 4(1)(c) of Decision 2004/258. Seized by the applicant, the GC recalled that, in the judgment delivered in case Aeris Invest v ECB, it already ruled out the possibility to base a general presumption on that provision.84 The GC nonetheless examined whether that solution was transposable in the case at hand: it considered that the reasoning developed in that judgment was indeed applicable and that, as a result, such a general presumption was not admissible.85 In addition, since the ECB argued that the contested decision was based not only on a general presumption, but also on a concrete assessment of the confidentiality of the requested documents, the GC examined whether the contested decision was based on such demonstration. However, it concluded that the contested decision contained no sufficient reasoning in that regard, and thus annulled that decision.86

Following the delivery of the judgment by default mentioned above in case Malacalza Investimenti v ECB, the defending institution filed an opposition to that judgment.87 In the judgment delivered on the opposition proceedings in 2022, the GC did not reverse its approach, but, echoing the reasoning followed in the judgment delivered in case Corneli v ECB, first, it confirmed the inadmissibility of the general presumption at stake and, second, it considered that, despite ECB allegations, the contested decision did not contain sufficient reasoning on the alleged confidentiality of the requested documents; it thus rejected the ECB’s opposition and confirmed the annulment of the refusal decision.88

The assessment of the interests concerned in some particular cases

The case law examined in the previous sections of this article concerns cases resulting from the administrative procedure for access to documents before different institutions and extends from the ‘application for access’ submitted by an applicant to the ‘exceptions’ and ‘general presumptions’ relied on by the requested institutions. Few recent cases brought before the EU Courts deal with some fewer ordinary situations, namely with access to documents that were made available and with the admissibility of undisclosed documents in judicial proceedings, both raising the question of the assessment of interests concerned.

Concerning cases where the requested documents have been disclosed following a request for access, two situations can be distinguished, depending on whether disclosure is done by the concerned institution or by a third party.

In the first situation, in the recent judgment delivered in case Agrofert v Parliament mentioned above, the GC considered that following the publication of the audit report on Internet by the Commission, that document became public and as a result, for that specific document, the applicant had lost its interest in challenging the refusal decision.89 It held that, following that publication by the Commission, which was the author of the document, the Parliament’s refusal decision had no longer effect and that, if that decision was annulled, the applicant would not obtain any other benefit than that resulting from the publication of the document.90 The GC underlined that, in the case at hand, the publication of the requested document did not result from the action of a third party, but from the action of the very author of the document, the Commission, which guarantees the authenticity of the published documents.91

The second situation, i.e. the publication of the requested document by a third party, was at stake in case Leino-Sandberg v Parliament. At the outset, it must be recalled that this case concerns a request for access to the refusal decision challenged in case De Capitani v Parliament.92 The Parliament refused access to the refusal decision and the applicant brought action before the GC. The GC dismissed the action as being devoid of purpose.93 It considered that the refusal decision was made available in full on the internet by its addressee and that the GC itself, in the judgment delivered in case De Capitani v Parliament, described at length the content of that document. It thus held that “there [was] no doubt that the applicant can use it in an entirely legal manner for the purposes of her university work”.94

However, seized on appeal by the applicant, the Court reversed the GC approach. The Court stated that “even if the document has been disclosed by a third party, the decision at issue has not been formally withdrawn by the Parliament” and that, as a result, the legal proceedings retained their purpose.95 According to the Court, the institution “satisfies its obligation to grant access to a document in the same way as if it had itself directly communicated it to the applicant” when it informs the applicant “how to obtain the requested document, which has already been released by the institution concerned” as “[s]uch information constitutes, in effect, an essential prerequisite to confirm the exhaustive and complete nature and lawful use of the requested document”.96 On the contrary, the obligation to grant access is not satisfied on “the sole ground that the document has been disclosed by a third party and that the applicant has obtained knowledge of it”.97 Indeed, when the institution itself discloses the document, it allows the applicant “to obtain knowledge of it and to make use of it legally, while being assured of the exhaustive and complete nature of that document”; conversely, a document disclosed by a third party “cannot be regarded as constituting an official document, or as expressing the official position of the institution, in the absence of an unequivocal endorsement by that institution according to which the document obtained emanates from it and expresses its official position”.98 Consequently, the Court concluded that when a document is disclosed by a third party and the institution continues to refuse access to it, the applicant retains a genuine interest to obtain access to an authenticated version of the requested document.99 The case was referred back to the GC, which very recently decided on its substance and annulled the Parliament’s refusal decision.100

As far as the admissibility of undisclosed documents before EU Courts is concerned, the judgment delivered by the Court in 2022 in case Nord Stream 2 v Council shed some light in a rather unusual situation. In the framework of an action for annulment against a Directive brought before the GC, the applicant produced some documents – a Council’s legal opinion, a Commission’s recommendation and the observations on the matter from a Member State – that were not disclosed by the institutions concerned and that, therefore, the Council requested that they be removed from the case file. In order to decide on the procedural issue raised by the Council, the GC held that, even if Regulation No 1049/2001 was not applicable as such, its provisions had a certain indicative value for the purpose of weighing up the interests concerned. It considered that, in relation to the Council’s legal opinion, the Council was right to rely on Article 4(2) of Regulation No 1049/2001 on the protection of legal advice, and that, in relation to the Commission’s recommendation and the Member States’ observations, the Council was entitled to rely on Article 4(1) of Regulation No 1049/2001 on the protection of international relations. The GC thus ordered the removal of those documents from the file.101

The applicant, however, challenged the GC decision before the Court. In its judgement, after recalling that, with regard to evidence produced before EU Courts, the applicable principle in EU law is that of the unfettered evaluation of evidence, implying that the admissibility of evidence can only be contested on the ground that evidence has been improperly obtained, the Court clarified the framework to apply in order to determine whether improperly obtained evidence is admissible. According to the Court, “it is necessary to weigh the interests of the respective parties to the proceedings in connection with their right to a fair hearing, taking into account the interests protected by the rules that have been breached or circumvented in obtaining that evidence”.102 In order to weigh up the interests concerned, the Court admitted that, in case of a request of removal from the file of evidence consisting in internal documents covered by Regulation No 1049/2001, that regulation has “a certain indicative value”, even though it does not “exhaustively governs” such weighing up.103 In other words, the admissibility of the evidence “depends ultimately on the weighing up of the interests present, having regard to the objective of guaranteeing the parties’ right to a fair hearing”.104

Having set this framework, the Court applied it to the case at hand. The Court considered that the GC was right to order the removal from the file of the Council legal opinion, because to allow an applicant to produce such a document, for which disclosure was not authorised, would be contrary “to the requirements of a fair hearing”.105 In addition, the Court considered that there was no “overriding public interest” capable of justifying the production of that opinion.106 By contrast, the Court noted that, with regard to the Commission’s recommendation and the Member States’ observations, the GC limited itself to base its decision exclusively on Article 4(1)(a) of Regulation No 1049/2001 concerning the protection of international relations, without establishing that “the retention of those documents in the file would be likely to cause specific and actual harm to the interest relied on”107 or, in any event, without weighing up the interests at stake.108 The Court thus annulled the GC decision to remove from the file these two latter documents produced by the applicant.109

Conclusion

The present overview of the recent case law of EU Courts on access to documents shows that the application of Regulation No 1049/2001 and ECB Decision 2004/258 by the institutions is fully reviewed by EU Courts, at different stages of the procedure for access to documents, in order to guarantee the effective exercise of the right of access. In particular, recent cases have brought EU Courts to draw some limits concerning reliance on exceptions and general presumptions, in order to avoid undue circumvention of their strict interpretation and application. Indeed, the right of access to documents can be seen as an emanation of the principle of transparency and an expression of the right to information, which are key elements of the EU institutional framework, and contributes to the legitimization of the action of the EU and to the acceptance of its decisions by its citizens.

Declarations

Competing Interests

The authors declare no competing interests.