Court of Justice of the European Communities
Published January 11, 2008
Kingdom of Sweden v Commission of the European Communities Case C-64/05P
Before V. Skouris, President and Judges P. Jann, C. W. A. Timmermans, A.
Rosas, K. Lenaerts, G. Arestis, U. Lõhmus, K. Schiemann, P. Kuris, E.
Juhász, J. Malenovsky, J. Klucka and E. Levits Advocate-General M. Poiares
Maduro
(Opinion July 18, 2007)
Judgment December 18, 2007
A request by an EU member state to a Community institution not to disclose to
a third party documents originating from that state and held by the
institution was to be regarded not as instruction with which the institution
was bound to comply but as the first step in a process of inquiry as to
whether one of the exceptions to disclosure set out in the Community
regulation on access to documents applied.
The Grand Chamber of the Court of Justice of the European Communities so held
when an allowing an appeal from the judgment of the Court of First Instance
of the European Communities in (Case T-168/02) IFAW Internationaler
Tierschutz-Fonds gGmbH v Commission of the European Communities (The
Times December 20, 2004; [2005] 1 WLR 1252).
On an application by the German Government under the Council Habitats
Directive (92/43/EEC) (OJ 1992 L206/7) the Commission of the European
Communities gave a favourable opinion to the carrying out of an industrial
project on a site protected under that directive.
IFAW, an organisation active in the field of the protection of animal welfare
and nature conservation, requested access to various documents the
Commission had received in connection with the project from the German
Government, the City of Hamburg and the German Chancellor.
After informing IFAW that, having regard to article 4(5) of Regulation (EC) No
1049/2001 of the European Parliament and of the Council of May 30, 2001
regarding public access to European Parliament, Council and Commission
documents (OJ 2001 L145/43), it took the view that it was obliged to obtain
the agreement of Germany before disclosing the documents in question. The
Commission received a request from Germany not to disclose them.
Since it considered that in those circumstances article 4(5) prohibited it
from disclosing the documents, the Commission on March 26, 2002 adopted a
decision refusing IFAW’s request.
In IFAW’s action for annulment of that decision, the Court of First Instance
dismissed the action on the ground, principally, that the Commission was
right in its view that a request under article 4(5) of Regulation No
1049/2001 constituted an instruction not to disclose which the institution
had to comply with, without it being necessary for the member state to give
reasons for its request or for the institution to examine whether
nondisclosure was justified. Sweden, an intervener at first instance in
support of IFAW, appealed.
In its judgment,the Grand Chamber of the Court of Justice held: As recitals 2
and 3 in the preamble to Regulation No 1049/2001 showed, its aim was to
improve the transparency of the Community decision-making process, since,
inter alia, such openness guaranteed that the administration enjoyed greater
legitimacy and was more effective and more accountable to the citizen in a
democratic system.
It was apparent from article 255(2) EC that the limits governing the exercise
of the right of access to documents had to be necessary on the ground of
public or private interest. The purpose of the Regulation was thus to define
the principles, conditions and limits concerning the right of public access
to documents, so as to give the fullest possible effect to that right.
To interpret article 4(5) as conferring on the member state a general and
unconditional right of veto, so that it could oppose, in an entirely
discretionary manner and without having to give reasons for its decision,
the disclosure of any document held by a Community institution simply
because it originated from that member state, was not compatible with those
principles.
The correct interpretation of article 4(5) was that the exercise of the member
state’s power was delimited by the exceptions set out in article 4(1) to
(3), with the member state merely being given in that respect a power to
take part in the Community decision.
The prior agreement of referred to in article 4(5) thus resembled not a
discretionary right of veto but a form of assent confirming that none of the
grounds of exception under article 4(1) to (3) was present.
Accordingly, once an institution had received a request for access to a
document originating from a member state and had notified the request to the
state, the institution and the member state should without delay commence a
genuine dialogue concerning the possible application of the exceptions laid
down in article 4(1) to (3).
If, following such dialogue, the member state objected to disclosure of the
document, it was, contrary to what the Court of First Instance had held,
obliged to state reasons for its objection with reference to those
exceptions.
The institution could not accept a member state’s objection to disclosure if
the objection gave no reasons at all or if the reasons were not put forward
in terms of the exceptions listed in article 4(1) to (3).
If, despite an express request by the institution, the member state still
failed to provide reasons, the institution, if for its part it considered
that none of the exceptions applied, had to give access to the document.
Further, the institution was itself obliged to give reasons for a decision
to refuse a request for access to a document.
That meant that in such a case the institution, in its decision, had not
merely to record the fact that the member state had objected to disclosure
of the document, but also to set out the reasons relied on by the member
state to show that one of the article 4(1) to (3) exceptions applied.
That information would allow the person who had asked for the document to
understand the origin and grounds of the refusal of his request, and the
competent court to exercise, if need be, its power of review.
On those grounds, the Court set aside the judgment of the Court of First
Instance and annulled the Commission’s decision of March 26, 2002.
