EU LAW AND FREEDOM OF INFORMATION

1. INTRODUCTION

1.1 Freedom of information was not one of the 'four freedoms' which formed the

foundations of the European project. The freedoms which a European common

market1 and customs union2 were intended to herald were simply:

a) the ability freely to ship goods for trade across national boundaries3;

b) the freedom of workers to 'up sticks' and go and take jobs abroad4;

c) the freedom of individuals and companies to offer their economic

services5 and, if so minded, to establish their businesses abroad6; and

d) the freedom to transfer money across European borders.7

1 Art 26(2) TFEU states that: 'The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.' 2 Art 30 TFEU: 'Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.' 3 Art 28(1) TFEU: 'The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.'4 Article 45(1) TFEU: 'Freedom of movement for workers shall be secured within the Union.' 5 Art 56(1) TFEU: '... [R]estrictions on freedom to provide services [normally provided for remuneration] within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.' 6 Art 49 TFEU '[R]estrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms…' 7 Art 63 TFEU:

'[A]ll restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited [and] … all restrictions on payments between Member States and between Member States and third countries shall be prohibited.'

1

1.2 However, the ambitions of the EU have long since outgrown the purely functionalist

economic free trade area aims which were first set out in the 1957 Treaty of Rome.

For example, one of the EU’s aims now is to establish a common 'area of freedom,

security and justice'8 in which, among other things, a common EU policy on asylum

in, and immigration into, the EU may be developed9, police action may be

coordinated,10 criminal law may be harmonised,11 and the judgments of national

courts in criminal12 and in civil matters13 may be recognised and given effect Europe-

wide.

1.3 To further these ends, information on individuals might be shared among the public

authorities of the Member States. Thus Directive 2006/24/EC14 on the retention of

data generated or processed in connection with the provision of publicly available

electronic communication services or of public communications networks, seeks to

harmonise the obligations of Internet service providers in the Member States to retain

data garnered by them automatically in the course of the use of their services, and to

make them available to the Member State authorities for the purpose of the

investigation, detection and prosecution of serious crimes.15

8 See Art 3(2) TEU; and Arts 67–89 TFEU.9 Arts 78–79 TFEU.10 Arts 87–89 TFEU.11 Art 83 TFEU.12 Art 82 TFEU.13 Art 81 TFEU.14 [2006] OJ L105/54.15 In Copland v United Kingdom (2007) 45 EHRR 37, the ECtHR confirmed that an employee’s use of the Internet and e-mail at work fell within the ambit of Art 8 ECHR protection of respect for private life and correspondence, such that any monitoring of this by her employer required to be justified under Art 8(2) ECHR to be lawful. By the same token, State control and monitoring of e-mail required under Directive 2006/24/EC amounts to an interference with Art 8(1) ECHR rights, which therefore requires to be justified under reference to the specific aims set out in Art 8(2) ECHR. Paradoxically, the consequence of the judgment of the ECtHR in KU v Finland (2009) 48 EHRR 52 is that the State may be required, by its positive obligations under Art 8 ECHR, to require private Internet service providers to reveal the details of a third party’s Internet use (in casu, placing a sexually defamatory notice about another) which contravenes or compromises that other’s Art 8 Convention right to respect for his private life and reputation.

2

1.4 This official need to share information of course, immediately, brings up the

possibility of abuse, and hence the need for regulation to ensure that the interests of

the individual potentially informed upon or against are duly taken into account. Thus

data protection laws can be seen as the necessary corollary in a national or supra-

national polity which aspires to respect the principles of the rule of law in this

information age.

1.5 A further realisation of the rule of law in the context of the information age is the

ideal of transparency: that members of civil society should be able to ascertain the

factual and legal bases on which official decisions are being made. This leads to the

need for rules governing the possibility of access by interested parties to information

held by public authorities. In Netherlands v Council, the Court of Justice further

noted that

the domestic legislation of most Member States now enshrines in a general manner the public’s right of access to documents held by public authorities as a constitutional or legislative principle.16

1.6 Clearly, however, there is going to be a constant (productive?) tension and possibility

of conflict between these two “information age” rule-of-law principles, namely:

a) the right of individuals as individuals to protection against the misuse of

data on them held by public authorities ('data protection laws'); and

b) the right of individuals as members of civil society to know what

information is being used by public authorities in making decisions in the public

sphere ('freedom of information' laws).

16 Case C-58/94 Netherlands v Council [1996] ECR I-2169 at para 34.

3

1.7 The tension between these two principles (protection of private data and transparency

as regards publicly held information) is paralleled by – but does not completely

mirror – the tensions already implicit in the law between:

a) the recognition of an individual’s right to privacy as against the public’s

'right to know' proclaimed by a free press; and

b) an individual’s legitimate expectation to respect for confidentiality as

against another’s right to free expression.

2. TREATY PROVISIONS

2.1 The twin principles of freedom of information and of data protection are expressly

recognised within the provisions of the TFEU.

2.2 Article 15(1) TFEU (formerly Article 255 EC) sets out the general principle that 'in

order to promote good governance and ensure the participation of civil society', the

EU institutions 'shall conduct their work as openly as possible', noting in particular, in

Article 15(2), that the European Parliament shall meet in public (as shall the Council

when considering and voting on a draft legislative act) and, under Article 15(2)(v)

TFEU, 'shall ensure publication of the documents relating to the legislative

procedures'.

2.3 Article 16(1) TFEU (formerly Article 286 EC) states that 'everyone has the right to

the protection of personal data concerning them'. Article 16(2) TFEU provides an

express Treaty basis for the adoption of EU legislation concerning the processing of

data on individuals, both by the EU and by the Member States when carrying out

activities falling within the scope of EU law. Such EU legislation shall be aimed at

protecting the individual’s interest in such 'personal data' and regulating its free

movement. Due compliance with these rules is subject to the control of independent

authorities.

4

3. EU FUNDAMENTAL RIGHTS AND INFORMATION ACCESS

Freedom of Information and the EU Charter of Fundamental Rights

3.1 Article 42 of the EU Charter of Fundamental Rights (“CFR”) provides, under the

heading 'Right of access to documents', that any 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 (whether in hard copies, or in electronic or other form)

of the EU’s institutions, bodies, offices and agencies.

3.2 Article 42 CFR echoes the terms of Article 15 TFEU and the EU secondary

legislation adopted thereunder (notably Regulation (EC) No 1049/200117). Article

52(2) CFR provides that

rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.

Freedom of Information and the ECHR

3.3 The CJEU has proclaimed that the right to freedom of expression in the public

square18 and the right to freedom of expression within employment,19 against a

background of duties relative to the maintenance of mutual20 trust and confidence

within that employment21 are both unwritten principles of EU law which parallel and

reflect the ECHR provisions on freedom of expression.

17 [2001] OJ L145/43.18 See Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und Vertriebs GmbH [1997] ECR I-3689; Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025; and Case C-421/07 Frede Damgaard [2009] ECR I-2629. See now Art 11(1) CFR, which provides:

'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.'

19 Case C-150/98 P Economic and Social Committee v E [1999] ECR I-8877 at para 13.20 See Case T-203/95 R Connolly v Commission [1995] ECR II-2919 at para 35.21 See Case C-274/99 P Connolly v Commission [2001] ECR I-1611 at paras 127–29; and Commission v Edith Cresson [2006] ECR I-6386.

5

3.4 There is no express provision in the European Convention on Human Rights

guaranteeing a right of access to individual22 or general information23 held by public

authorities as distinct from the right guaranteed – under both Article 10 ECHR and

Article 11 CFR – freely to express and to receive and impart information and ideas

one already has, without interference by public authority and regardless of frontiers.

3.5 The European Court of Human Rights has, however, more recently begun to tease out

the implications of the right to 'receive … information' set out in Article 10 ECHR.24

The Strasbourg Court has begun to develop the idea implicit in Article 10 ECHR of a

positive obligation on the State authorities – for example, in implementation of the

State's responsibility to nurture and further the freedom of the press to carry out its

investigative functions in the public interest.25 This may entail the State actively

removing obstacles which exist solely because of the historic fact of public authorities

holding a monopoly on information. Thus, in Kenedi v Hungary26 the Strasbourg

Court held that Hungary’s refusal to allow a professional historian access to historical

22 See Leander v Sweden (1987) 9 EHRR 433 at para 74: 'Article 10 ECHR does not ... confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.' 23 See Loiseau v France – admissibility decision [2003] ECHR 46809/99 (Second Section, 18 November 2003): 'It is difficult to derive from the ECHR a general right of access to administrative data and documents…' 24 See, eg, Sdružení Jihočeské Matky v Czech Republic – non-admissibility decision [2006] EHRR 19101/03 (Fifth Section,10 July 2006), where the Strasbourg Court articulated a broader interpretation of the notion of 'freedom to receive information' and in so doing moved closer towards the recognition of a positive right of access to information.25 See, eg, Chauvy and Others v France (2005) 41 EHRR 29 at para 66:

'The Court has on many occasions stressed the essential role the press plays in a democratic society. It has, inter alia, stated that although the press must not overstep certain bounds, in particular in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.'

See too Sanoma Uitgevers B.V. v. The Netherlands, [2010] ECHR 38224/03 (Grand Chamber, 14 September 2010) at para 72:

“[A]n order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources. This suffices for the Court to find that this order constitutes, in itself, an interference with the applicant company's freedom to receive and impart information under Article 10 § 1”

26 Kenedi v Hungary [2009] ECHR 31475/05 (Second Section, 26 May 2009).

6

documentation (which access had been authorised by a court order) was incompatible

with his rights under Article 10 ECHR, given that access to original documentary

sources for legitimate historical research was an essential element of the exercise of

his right to freedom of expression.27

3.6 Further, in Társaság a Szabadságjogokért v Hungary,28 the European Court of

Human Rights upheld the complaint of the Hungarian Civil Liberties Union that the

decisions of the Hungarian courts denying it access to the details of a

parliamentarian’s complaint pending before the Constitutional Court, had amounted

to a breach of the Union's right to have access to information of public interest. In the

Strasbourg Court’s view, the submission of an application for an a posteriori abstract

review of this legislation – especially by a Member of Parliament – undoubtedly

constituted a matter of public interest. Consequently, the European Court of Human

Rights found that the applicant – a recognised human rights NGO which the Court

considered was properly exercising the function of 'social watchdog'29 and so was

entitled to similar Convention protection to that afforded to the press30 – was involved

in the legitimate gathering of information on a matter of public importance. In these

circumstances, the Strasbourg Court considered that the refusal on the part of the

Hungarian Constitutional Court to release the requested information 'amounted to a

form of censorship' contrary to the requirements of Article 10 ECHR.

3.7 Lastly, in Haralambie v Romania,31 the Strasbourg Court reiterated the vital interest

for individuals who were the subject of personal files held by the public authorities to

be able to have access to them. The European Court of Human Rights emphasised

27 See Case Commentary, 'Kenedi v Hungary: access to documents – civil right' (2009) 5 European Human Rights Law Review 694.28 Társaság a Szabadságjogokért v Hungary [2009] ECHR 37374/05 (Second Section, 14 April 2009).29 See, eg, Vides Aizsardzības Klubs (Environmental Protection Club v Latvia [2004] ECR 57829/00 (First Section, 27 May 2004) at para 42; and Riolo v Italy [2008] ECHR 42211/07 (Second Section, 17 July 2008) at para 63.30 See, eg, Dammann v Switzerland [2006] ECHR 77551/01 (Fourth Section, 25 April 2006) at para 52.31 Haralambie v Romania [2009] ECHR 21737/03 (Third Section, 27 October 2009).

7

that the authorities had a duty to provide an effective procedure for obtaining access

to such information, and that their failure to provide for an effective and accessible

procedure to enable the applicant to obtain access to his personal security files within

a reasonable time constituted a violation of Article 8 ECHR.

Freedom of Information and the EU law principle of transparency

3.8 The Grand Chamber of the Court of Justice has noted:

The principle of transparency is stated in Articles 1 TEU and 10 TEU and in Article 15 TFEU. It enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system…32

3.9 Nothing is expressly said in the Treaty of the need for openness or publication of the

workings of the Commission. However Article 15(3) TFEU (formerly Article 255(1)

EC) sets out the general principle that any natural or legal person resident with the

Union shall have a right of access to documents of Union institutions, bodies, offices

and agencies, whatever their medium, on the conditions laid down by the Council.33

This is subject to particular EU regulation on the issue specifying the 'general

principles and limits on grounds of public or private interest'.

3.10 Consistently with such general EU regulation, each EU body is then required to

'ensure that its proceedings are transparent' and to set out in its own particular Rules

of Procedure specific provisions regarding access to its documents, although the

Court of Justice of the European Union (“CJEU”) and the European Central Bank

(“ECB”) and the European Investment Bank (“EIB”) are said to be subject to these

32 See Joined Cases C-92/09 & C-93/09 Volker und Markus Schecke GbR v Land Hessen, 9 November, [2010] ECR I-nyr at para 68, citing Case C-41/00 P Interporc v Commission [2003] ECR I-2125, para 39, and Case C-28/08 P Commission v Bavarian Lager, 29 June, [2010] ECR I-nyr, para 54.

33 See Council Regulation 1049/2001 [2001] OJ L145/, 31 May 2001.

8

transparency and document access requirements 'only when exercising their

administrative tasks.'

4. EU SECONDARY LEGISLATION ON ACCESS TO DOCUMENTS

4.1 Regulation (EC) No 1049/2001 34 aims at facilitating the 'fullest possible public

access’ to EU documents35 (particularly in cases where the EU institutions are acting

in a legislative capacity), while – at the same time – seeking to preserve the

'effectiveness' of the institutions’ decision-making process, by preserving the secrecy

of the institutions’ internal consultations and deliberations where necessary to

safeguard their ability to carry out their tasks (Article 4(3)).36

4.2 It should in any event be noted that the EU access-to-documents regime applies only

to the EU’s own institutions, bodies, offices and agencies. Strictly, it is not a freedom

of information regime. Instead, as the General Court has stated:

[T]he concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.37

4.3 The protection and promotion of freedom of information by and within the Member

States remains a matter for Member States to regulate. European Union law does not

34 [2001] OJ L145/4335 See, eg, Case C-266/05 P Sison v Council [2007] ECR I-1233, para 61; Case C-64/05 P Sweden v Commission [2007] ECR I-11389, para 53; and Case C-139/07 P Commission v Technische Glaswerke Ilmenau, 29 June, [2010] ECR I-nyr at para 51.36 For discussion of this provision, see Case T-121/05 Borax Europe Ltd v Commission [2009] II-27* (Summ Pub) (Order of 11 March 2009) at paras 68 and 70:

'[W]hile the Community legislature has provided for a specific exception to the right of public access to the documents of the Community institutions as regards legal advice, it has not done the same for other advice, in particular scientific advice, such as that expressed in the recordings at issue. ... It follows that scientific opinions obtained by an institution for the purpose of the preparation of legislation must, as a rule, be disclosed, even if they might give rise to controversy or deter those who expressed them from making their contribution to the decision-making process of that institution.'

37 Case T-264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.

9

yet extend to giving a right of access to documents held – in their own right rather

than as agents for the EU – by public authorities of the Member States, though

Recital 15 of Regulation (EC) No 1049/2001,38 which is the central provision of the

EU freedom of information regime, states:

Even though it is neither the object nor the effect of this Regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and should respect the security rules of the institutions.

4.4 Somewhat tendentiously, it is claimed that the right of public access to documents of

the EU institutions is related to the ‘democratic nature’ of those EU institutions.39

Although the Regulation sets time-limits within which to respond to document access

requests, failure on the part of the EU to comply with the time-limits laid down in that

provision does not lead automatically to the annulment of the decision adopted after

the deadline, as this would merely cause the administrative procedure for access to

documents to be reopened. Instead, compensation for any loss resulting from the

lateness of the institutional response may be sought through an action for damages.40

4.5 Article 4 of the EU Regulation also sets out a series of possible permissible reasons

for refusing access to (or selectively redacting) requested documentation. As a

derogation from the general principle of public access to documents held by the EU,

38 [2001] OJ L145/43.39 See, eg, Joined Cases C-39/05 P & C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, para 34 and Case C-506/08 P Sweden v. Commission 21 July [2011] ECR I-nyr at paras 72:

“Regulation No 1049/2001… reflects the intention expressed in the second paragraph of Article 1 EU – inserted by the Treaty of Amsterdam – of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions.”

40 Joined Cases T-355/04 & T-446/04 Co-Frutta Soc Coop v Commission, 19 January, [2010] ECR II-nyr at para 71.

10

these exceptions must be interpreted narrowly and applied strictly. 41 These

exceptions to the application of the principle of transparency include:

- under reference to Article 4(1)(a), where disclosure would undermine the

protection of the public interest as regards:

(a) public security,42

(b) defence and military matters

(c) international relations, and/or

(d) the financial, monetary or economic policy of the EU or of a Member

State43.

41 See Case C-506/08 P Sweden v. Commission 21 July [2011] ECR I-nyr at paras 75-6:

“[S]ince they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 63; Joined Cases C-39/05 P & C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 36; Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr, paragraph 73).

76. Thus, if the institution concerned decides 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 effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying (Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr, paragraph 72 and case-law cited). Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (Joined Cases C-39/05 P & C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 43).”

42 Case C-266/05 P Sison v Council [2007] ECR I-1233. Thus a request to the Commission for disclosure of “all documents materially connected to the EU’s emerging initiatives on violent radicalisation” was met with a response noting that the documents had been classified "RESTREINT UE", which is the classification which is applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States and that the documents would not be disclosed on the basis that:

“The information contained in these documents could, if released to the public, be misused by persons or groups involved in radicalisation and recruitment to terrorism. Such misuse would jeopardize the internal security of the Member States. Accordingly, pursuant to Article 4(1)(a) first indent of the Regulation (protection of the public interest as regards public security), the General Secretariat is not in a position to grant full access to these documents. However, pursuant to Article 4(6) of the Regulation, you may have access to those parts of the documents which are not covered by this exception.”

43 See Joined Cases T-3/00 & T-337/04 Pitsiorlas v Council [2007] ECR II-4779.

11

- under reference to Article 4(1)(b), where refusal may also be made on the basis of

harm to the privacy and the integrity of the individual, having particular regard to

the EU’s data protection legislation 44 (considered further below).

- under reference to Article 4(2), unless there is an overriding public interest in

disclosure, the EU institutions are also required to refuse access to a document

where its disclosure would undermine the protection of:

a) commercial interests of a natural or legal person,45 including

intellectual property46;

44 See for example Case T-161/04 Valero Jordana v Commission 7 July [2011] ECR II-nyr in which the General Court annulled the refusal by the Commission to acceded to a request from an individual to see the reserve list for an open competition and individual decisions concerning the appointment of Commission officials, holding that the exception concerning privacy and the integrity of the individual was not sufficient to justify refusal of access to this information45 Joined Cases T-355/04 & T-446/04 Co-Frutta, above n 43, the General Court noted at para 133 in relation to this exception:

'The aim behind the application for access to the documents [in this case] is that of verifying the existence of fraudulent practices on the part of the applicant’s competitors. The applicant thus pursues, amongst other objectives, the protection of its commercial interests. However, it is not possible to categorise the applicant’s commercial interests as being an "overriding public interest" which prevails over the protection of the commercial interests of traditional operators, the objective underlying the refusal of access to a part of the documents requested. In addition, the pursuit of the public interest in identifying cases of fraud in order to ensure the smooth operation of the banana market is not a matter for the operators, but for the competent Community and national public authorities, where appropriate following an application made by an operator.'

46 See too Art 15(1) of Directive 2002/58/EC on privacy and electronic communications ([2002] OJ 201/37), which allows Member States to adopt legislative measures to restrict the scope inter alia of the obligation to ensure the confidentiality of traffic data, where such a restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (ie State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system. In Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271, the Grand Chamber of the Court of Justice held that this Directive could not be relied upon to seek recovery of information by a civil party seeking to ensure effective protection of copyright protected under EU law in the context of civil proceedings.

12

b) court proceedings47 and legal advice48; and

c) the purpose of inspections, investigations49 and audits.50

- under reference to Article 4(3) where the document contains contains opinions for

internal use as part of deliberations and preliminary consultations within the

institution concerned, disclosure may be refused even after the decision has been

47 In Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr, the Grand Chamber ruled – more than a little paradoxically – that the disclosure of pleadings lodged in pending court proceedings is presumed to undermine the protection of those proceedings – because of the fact that the pleadings constitute the basis on which the Court carries out its judicial activities – and so a general rule can be applied to refuse access to court pleadings in open proceedings. However, in closed proceedings held in camera no such general presumption can be applied, and so access to the pleadings in proceedings held behind closed doors can be refused by the Commission only after it undertakes a specific examination of the document to which access is requested and explains how disclosure of that document could specifically and effectively undermine the court proceedings in question.48 In Case T-111/07 Agrofert Holding as v Commission, 7 July, [2010] ECR II-nyr, the General Court held that it was insufficient for the Commission to refuse access to the legal advice in question merely by claiming a general need to maintain its confidentiality in order to be able to obtain full and frank legal advice. To rely upon this exemption effectively, the Commission would instead have to show how disclosure of the legal advice in question would, on the facts of the particular case, constitute a genuine and reasonably foreseeable specific risk (rather than some purely hypothetical threat) to its legitimate interests. This decision was at the time of writing under appeal to the CJEU under reference C-477/10P. In Case C-506/08 P Sweden v. Commission 21 July [2011] ECR I-nyr (on appeal from Case T-403/05 MyTravel v. Commission [2008] ECR II-2027) the CJEU upheld this approach in observed that the Commission was under a duty to examine the contents of a document and if relying upon the legal advice exception, explain how access to a document might actually and specifically undermine the interest in the protection of legal advice, noting at para 113:

“As regards, first, the fear that disclosure of an opinion of the Commission’s legal service relating to a draft decision could lead to doubts as to the lawfulness of the final decision, it is, as the Kingdom of Sweden has rightly argued, precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.”

49 In Case T-111/07 Agrofert Holding, ibid, it was held (at para 97) that this proviso

'must be interpreted as applying only if disclosure of the documents in question may endanger the completion of inspections, investigations or audits'.

50 In Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr, the Grand Chamber upheld the decision of the General Court on appeal to the effect that documents relating to investigations carried out by the Commission in the context of infringement proceedings under Art 258 TFEU are no longer covered by this last exception (undermining 'the purpose of inspections, investigations and audits') after the Court of Justice

13

taken if such disclosure would “seriously undermine the institution's decision-

making process” unless there is an overriding public interest in disclosure 51

4.6 In principle, the right of access also applies to EU documents relating to the Common

Foreign and Security Policy and to police and judicial cooperation in criminal

matters.

4.7 In principle, too, the EU freedom of information regime is not limited only to

documents drawn up by the EU institutions, but may also apply to documents

received by them, although allowing for a Member State to request the Commission

or the Council not to communicate to third parties a document originating from that

State without its prior agreement. But Member States do not have any general and

unconditional right of veto on the disclosure of a document held by a Community

institution simply because it originates from that Member State.52

has delivered its judgment closing those proceedings.

51 See Case C-506/08 P Sweden v. Commission 21 July [2011] ECR I-nyr at paras 78-80:

“78. Article 4(3) draws a clear distinction precisely by reference to whether a procedure has been closed or not. Thus, first, according to the first subparagraph of that provision, any document drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution falls within the scope of the exception for protecting the decision-making process. Secondly, the second subparagraph of that provision provides that, after the decision has been taken, the exception at issue covers only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned.

79. It is thus only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) allows access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution.

80      It follows that the Union legislature took the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question.”

14

4.8 The EU regulation sets up a two-stage administrative procedure in relation to dealing

with access to documents requests, 53 with the additional possibility of court

proceedings being taken by a disappointed applicant before the CJEU or a complaint

being made to the European Ombudsman. In relation to the ombudsman, one may

note the provisions of Article 43 CFR which states that

any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.

4.9 Any refusal of the EU institutions to produce requested documentation will be subject

to judicial review before the General Court,54 with a right of appeal therefrom to the

Court of Justice.55

5. FREEDOM OF INFORMATION AND THE CJEU

Freedom of information v. protection of privacy

5.1 The EU legislature enacted in 2001 not only a freedom of information measure in

Regulation (EC) 1049/2001 but also Regulation (EC) 45/2001 on data protection 56

The CJEU has held that purpose of the right under EU law of access to information

held on an individual is primarily in order to verify in particular the accuracy of the

52 Case C-64/05 P Sweden v Commission [2007] ECR I-11389, para 58, on appeal from Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135.53 According to Article 7(2) of the Regulation, a person seeking to disclosure whose request has been refused you may submit a confirmatory application requesting the Council to reconsider this position, within 15 working days of receiving the initial reply. Should the applicant decide to do so, then it requires to indicate whether it permits the Council to make your confirmatory application fully public in the Council's Register of documents. If the applicant does not reply or replies in the negative, then the application will be dealt with confidentially. The reply will in no way prejudice the applicant’s rights under Regulation (EC) No 1049/200154 See, eg, Case T-194/94 Carvel [1995] ECR II-2765.55 See, eg, Case C-353/99 P Council of EU v Heidi Hautala MEP [2001] ECR I-9565.56 [2001] OJ L8/1

15

data and the lawfulness of the data processing, but that the interests or the rights and

freedoms of the data subject are not overriding.57

5.2 As we have seen, the first regulation seeks to guarantee the “widest possible access to

document” held by EU institutions or bodies. The data protection legislation pulls in

the opposite direction seeking to ensure the proper protection the privacy of

individuals whose personal data is processed by EU institutions or bodies As has

been observed:

“The regulations … pursue potentially conflicting purposes. This becomes evident upon closer examination of their provisions. For instance, Article 8 of Regulation (EC) 45/2001 [on data protection] provides that data may only be transferred to a third party recipient if the necessity of the transfer is demonstrated (‘the necessity test’) while it is a central tenet of Regulation (EC) 1049/2001 [on freedom of information], set out in Article 6(1), that no reason need to be provided in support of a request for access to documents.” 58

5.3 But in its decision in Commission v Bavarian Lager 59 the CJEU - overruling the

Grand Chamber’s analysis on this point - has also held that even if important

economic interests are at stake, there is no primacy or priority to be assumed for the

objective of transparency/freedom of information, over the right to protection of

personal data. And departing from the analysis of AG Sharpston the CJEU held that

the request made to the Commission for disclosure of the names of those who

attended an invitation only meeting with the Commission (apparently to discuss then

ongoing - but subsequently dropped - Article 258 TFEU infringement proceedings

against the UK in relation to alleged protectionist measures impeding the sale of

German beer on the British market) constituted a “data processing request”.

Accordingly, the CJEU held, the provisions of Regulation (EC) 45/2001 on data

protection applied in their entirety. 60 The requirements of this regulation was said by

57 See Case C-112/00 Schmidberger [2003] ECR I-5659, para 80, where the Court of Justice observed that the right to the protection of personal data is not an absolute right but must be considered in relation to its function in society. 58 Orla Lynskey “Data Protection and Freedom of Information: reconciling the irreconcilable ?” (2011) 70 Cambridge Law Journal 3759 Case C-28/08 P Commission v Bavarian Lager, 29 June, [2010] ECR I-nyr, paras 75–79.60 Compare the decision in Case C-139/01 Osterreichischer Rundfunk and others [2003] ECR I-4989 where the CJEU determined the compatibility of Austrian legislation data protection legislation only under

16

the Court to justify the refusal by the Commission to redact the name of those

attending who did not consent to their identities being publicly disclosed.61

Legal professional privilege v. freedom of information

The confidentiality of legal advice from independent counsel

5.4 In AM & S Europe v Commission,62 following a comparative survey of the laws of the

Member States, the Court of Justice concluded that the Commission’s extensive

powers of investigation, search and seizure in the context of suspected breaches of

EU fair competition law were subject to the principle that communications between

lawyer and client were to be respected as confidential. The Commission could not

therefore require the production of business records concerning such

communications. The Court of Justice held, however, that the principle of

confidentiality applied only in relation to communications with independent counsel

rather than with in-house lawyers or legal departments.

5.5 In Ordre des barreaux francophones et germanophone v Council, the Court of Justice

held that the obligation imposed on lawyers by Article 2a(5) of the Money

reference to the requirements of Article 8 ECHR as determined by the Strasbourg Court, rather than under reference to the EU secondary legislation on data protection.61 For commentary on this decision see European Data Protection Supervisor (“EDPS”) Paper “Public access to documents containing personal data after the Bavarian Lager ruling” at http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/BackgroundP/11-03-24_Bavarian_Lager_EN.pdf . He observes at page 6 :

‘In case of a public access request for a document containing personal data, such as in the Bavarian Lager case, the rules on data protection are entirely applicable, with Article 8(b) having crucial importance. It follows from the judgment that the Commission, under Article 8(b) of the data protection regulation, should in principle have weighed up the various interests of the parties concerned. However, since Bavarian Lager had not provided any express and legitimate justification, this balance of interests could not be made by the Commission. The Court was therefore not in a position to evaluate the outcome of such a balancing test. As a consequence, the judgment itself provides no guidance as to the way in which to strike a fair balance between the different interests at stake. The Court furthermore considered that the Commission rightly verified whether the data subjects had given their consent to the disclosure of their personal data and in the absence of express consent rightly required Bavarian Lager to establish the necessity of the transfer. The EDPS takes the view that, with regard to the analysis under Article 8(b), these considerations should not be read as obliging the institutions to request the consent of the data subject in every case in which public disclosure of personal data is asked for. The data protection rules provide that the legitimate interests of the data subject may be sufficiently safeguarded if he or she is afforded the right to object to the disclosure as provided for in Article 18 of the data protection regulation.’

62 Case 155/79 AM & S Europe Ltd v Commission [1982] ECR 1575 at 1610–13.

17

Laundering Directive 91/308/EEC63 to inform the competent authorities of any fact

which could be an indication of money laundering, was compatible with the right to a

fair trial and with the principle of respect for the professional secrecy and the

independence of lawyers.64

The confidentiality of the Commission’s in-house legal advice

5.6 The principle of the confidentiality of in-house legal advice is one which, according

to the CJEY, may be claimed in principle by the EU institutions.65 As the President

of the General Court has observed:

According to settled case-law, it is contrary to public policy, which requires that the institutions should be able to receive the advice of their legal service, given in full independence, to allow such internal documents to be produced by persons other than the services at whose request they have been prepared in proceedings before the Court, unless their production has been authorised by the institution concerned or ordered by the Court (order in Case C-445/00 Austria v Council [2002] ECR I-9151, paragraph 12; Case T-44/97 Ghignone and Others v Council [2000] ECR-SC I-A-223 and II-1023, paragraph 48; and order in Case T-357/03 Gollnisch and Others v Parliament [2005] ECR II-1, paragraph 34).66

5.7 The idea that fundamental rights protections may be prayed in aid by the EU

institutions is certainly difficult to reconcile with the principle of ECHR

jurisprudence to the effect that fundamental rights cannot be prayed in aid by public

63 Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [1991] OJ L166/77, as amended by Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 [2001] OJ L344/76.64 Case C-305/05 Ordre des barreaux francophones et germanophone v Council of Ministers [2007] ECR I-5305.65 See Joined Cases C-39/05 P & C-52/05 P Sweden and Turco v Council [2008] ECR I-4723.66 Case T-18/10 R, Inuit Tapiriit Kanatami and others v European Parliament and Council, 30 April, [2010] ECR II-nyr, the Opinion of the President of the General Court at para 19.

18

authorities or 'governmental organisations'67 which simply have no standing to make

claims under Article 34 ECHR of a violation of Convention rights.68

The non-confidentiality of in-house legal advice

5.8 The finding that the EU institutions can claim legal professional privilege in relation

to their own in-house legal advice makes all the more startling the decision of the

Grand Chamber of the CJEU to endorse and reiterate earlier rulings of the Court of

67 See now MacKay and BBC Scotland v UK [2010] ECHR 10734/05 (Fourth Section, 7 December 2010) at paras 18–19:

'… In their initial observations, the Government objected that the BBC was a public broadcasting corporation established by Royal Charter and therefore BBC Scotland could not be a victim for the purposes of Article 34 of the Convention. However, in their final observations the Government informed the Court that, for the sole purpose of the present application, they conceded that BBC Scotland could be categorised as a victim and withdrew their initial observations on this point. Relying on the Court's judgment in Österreichischer Rundfunk v Austria, no 35841/02, 7 December 2006, the applicants considered that the second applicant was a victim for the purposes of Article 34. … Having noted the parties' positions and having regard to its established case-law (see, for example, Radio France and Others v France (dec), no 53984/00, ECHR 2003-X (extracts)) the Court will proceed on the basis that BBC Scotland can be considered to be a victim within the meaning of Article 34 of the Convention.'

68 See, eg, the partial admissibility decision in Radio France v France [2003] ECHR 53984/00 (Second Section, 23 September 2003) at para 26:

'... The term "governmental organisations", as opposed to "non-governmental organisations" within the meaning of Article 34, applies not only to the central organs of the State, but also to decentralised authorities that exercise "public functions", regardless of their autonomy vis-à-vis the central organs; likewise it applies to local and regional authorities (see, in particular, Rothenthurm Commune v Switzerland, no 13252/87, Commission decision of 14 December 1988, Decisions and Reports (DR) 59, p 251; Municipal Section of Antilly v France (dec), no 45129/98, ECHR 1999-VIII; Province of Bari, Sorrentino and Messeni Nemagna v Italy, no 41877/98, Commission decision of 15 September 1998, unreported; Ayuntamiento de Mula v Spain (dec), no 55346/00, ECHR 2001-I; and Danderyds Kommun v Sweden (dec), no 52559/99, 7 June 2001). The European Commission of Human Rights reached the same conclusion regarding public-law entities other than territorial authorities: the General Council of Official Economists' Associations in Spain, on the ground that it performed 'official duties ... assigned ... by the Constitution and the legislation' (see Consejo General de Colegios Oficiales de Economistas de España v Spain, nos. 26114/95 and 26455/95, Commission decision of 28 June 1995, DR 82-B), and the Spanish national railway company, essentially on the grounds that it was under the control of the government and enjoyed an operating monopoly (see RENFE v Spain, no 35216/97, Commission decision of 8 September 1997, DR 90-B). Moreover, in The Holy Monasteries v Greece (judgment of 9 December 1994, Series A no 301-A at p 28, §49) the Court recognised that the public-law entities concerned had the status of "non-governmental organisation" because they did not exercise "governmental powers", had not been established "for public-administration purposes" and were "completely independent" of the State. It follows from the above-mentioned decisions and judgment that the category of "governmental organisation" includes legal entities which participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial

19

Justice to the effect that whereas the in-house legal advice communicated within the

EU institutions (which are quintessentially 'government organisations' for the

purposes of the ECHR) is protected from disclosure by reason of those institutions'

fundamental right to respect for the confidentiality of the legal advice received by

them, legal professional privilege cannot be claimed by private enterprises under

investigation by the Commission in respect of legal advice from, and internal

communications with, their own in-house lawyers. In Akzo Nobel Chemicals Ltd v

Commission the CJEU Grand Chamber notes:

47. ... [A]n in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence.

48. It must be added that, under the terms of his contract of employment, an in-house lawyer may be required to carry out other tasks, namely, as in the present case, the task of competition law coordinator, which may have an effect on the commercial policy of the undertaking. Such functions cannot but reinforce the close ties between the lawyer and his employer.

49. It follows, both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer.

50. Therefore, the General Court correctly applied the second condition for legal professional privilege laid down in the judgment in AM & S Europe v Commission.69

Discovery and the right to access to EU documentation70

5.9 In Zwartveld,71 the Court of Justice held that under EU law there was a presumption

in favour of EU institutions producing documentation to national courts and

authorising their officials to give evidence to national magistrates engaged in

authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities….'

69 Case C-550/07 P Akzo Nobel Chemicals Ltd v Commission, 14 September, [2010] ECR I-nyr at paras 47–50.70 Art 42 CFR provides: 'Any 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 European Parliament, Council and Commission documents.'71 Case C-2/88 Zwartveld [1990] ECR I-4405.

20

investigations into fraud. Any refusal to cooperate with national judicial authorities in

this way must be justified by imperative reasons, for example the protection of the

rights of third parties or where the disclosure of the information would be capable of

interfering with the functioning and independence of the EU institutions.

5.10 Even before the enactment of Regulation (EC) 1049/2001 there may be said to

have existed, as a matter of the CJEU’s jurisprudence, a presumptive right of access

to EU documentation.72 In Baustahlgewebe 73 the Court of Justice also accepted that

the right of access to the Commission’s file was recognised as a general principle of

EU law.74

5.11 But in its decision in Sweden and Association de la Presse Internationale asbl

(API) v Commission, the Grand Chamber seemed to set little store by the idea of

compliance with the general principle of transparency in decision making – at least in

the context of CJEU proceedings – as being in itself of overriding public interest.

Thus the CJEU summarily dismissed 'mere claims' made by API to the effect that the

public’s right to be informed about important issues of EU law – such as those

concerning competition, and about issues which are of great political interest raised

by infringement proceedings against Member States – should 'prevail over the

protection of the court proceedings'. Instead, in the Grand Chamber’s view,

it is only where the particular circumstances of the case substantiate a finding that the principle of transparency is especially pressing that that principle can constitute an overriding public interest capable of prevailing over the need for protection of the disputed documents and, accordingly, capable of justifying their disclosure.75

5.12 If an EU institution or body subject to the provisions of Regulation (EC) No

1049/2001 decides to refuse access to a requested document, it must, in principle,

72 Joined Cases C-174/98 P and C-189/98 P The Netherlands and another v Commission [2000] ECR I-1.73 Case C-185/95 P Baustahlgewebe GmbH v Commission [1998] ECR I-8417.74 See also Case C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235 at paras 75–79.75 Ibid, at para 156.

21

explain how disclosure of that document could specifically and effectively undermine

the interest protected by the Article 4 exceptions.76 However, the Grand Chamber has

also ruled that the EU institution may, in refusing a specific document access request,

base its decisions

on general presumptions which apply to certain categories of document, as considerations of a generally similar kind are likely to apply to applications for disclosure which relate to documents of the same nature.77

5.13 The Grand Chamber in the same case appears to sets up a rather specious and

spurious hierarchy of types of documents by which, it claims, it can grade the degree

of public interest in having access to them. Documents relating to the legislative

activities of an EU institution are said to be the most important. These are followed

by documents relating to the administrative activities of the Commission, which are

said to be being of less public importance in terms of public and open access. Lastly,

documents relating to the 'the judicial activities of the Court' are said to be of the least

interest and importance to the public, and hence access to these may be the more

readily refused and such refusal the more easily justified.78 In any event, says the

Grand Chamber, the provisions of Regulation (EC) No 1049/2001 simply do not

apply to requests for court pleadings, as these are documents relating to the court’s

judicial activities and Article 15(3) TFEU applies the duty of transparency and

document access to the CJEU only when exercising 'administrative tasks' as opposed

to its judicial functions,79 noting that

if third parties were able, on the basis of Regulation No 1049/2001, to obtain access to those pleadings, the system of procedural rules governing the court proceedings before the CJEU would be called into question….80

76 See, eg, Joined Cases C-39/05 P & C-52/05 P Sweden and Turco v Council [2008] ECR I-4723 para 49; and Case C-139/07 P Commission v Technische Glaswerke Ilmenau, 29 June, [2010] ECR I-nyr, para 53.77 Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr at para 74.

78 See ibid at para 77; and Commission v Technische Glaswerke Ilmenau, above n 53, para 60.79 Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr, paras 77–84.

80 Ibid at para 100.

22

5.14 In ruling that there is no public right of access to written pleadings before the

CJEU, on the basis that it claims that judicial activities are excluded from the scope of

the right of access to documents (and thereby also preserving the secrecy of the actual

deliberations of the Court, as opposed to the composite unanimous non-dissenting

judgments ultimately produced which pass for the reasons for – if not the reasoning

behind – its decisions81) the Grand Chamber made a number of claims, avowedly by

way of justification for its attributing to court pleadings a presumptively secret or

confidential status, Many of these claims, from a UK court lawyer’s perspective,

seem to be couched in extraordinary terms

77. ... [I]t should be noted that pleadings lodged before the Court of Justice in court proceedings are wholly specific since they are inherently more a part of the judicial activities of the Court than of the administrative activities of the Commission.

...

[79.] [J]udicial activities are as such excluded from the scope, established by those [EU] rules, of the right of access to documents

...

86. [I]f the content of the Commission’s pleadings were to be open to public debate, there would be a danger that the criticism levelled against them, whatever its actual legal significance, might influence the position defended by the Commission before the CJEUs.

...

92. As regards, secondly, the sound administration of justice, the exclusion of judicial activities from the scope of the right of access to documents, without any distinction being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity.

93. Disclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings.

94. It is therefore appropriate to allow a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings.82 (emphasis added)

81 See A O’Neill, 'The European Court of Justice: on justice not being seen to be done' (1992) 37(5) Journal

of the Law Society of Scotland 169.

82 See Joined Cases C-514, C-528 & C-532/07 P Sweden and Association de la presse internationale asbl (API) v Commission, 21 September, [2010] ECR I-nyr.

23

5.15 It is difficult to see how this decision of the Grand Chamber of the Court of

Justice in Sweden and Association de la Presse Internationale asbl (API), refusing

general press and public access to the court pleadings lodged before the Court of

Justice of the European Union, can, in the light of the developing jurisprudence of the

European Court of Human Rights on a fundamental right of access to information, be

said to be Convention compatible. That is perhaps one of the reasons behind the

proposal that the EU should accede to the ECHR, the negotiation in respect of which

are on-going. But that is definitely the topic for another lecture.

Matrix Chambers

Griffin Building

Gray’s Inn

London WC1R 5LN AIDAN O’NEILL QC

24