OTHER CHARACTERISTIC ELEMENTS OF THE TRANSPARENCY REGULATIONTRANSPARENCY REGULATION

The previous section discussed the underlying principles of European transparency legislation. This section will examine some of the most essential rules of European transparency legislation. The rules examined in this section are of particular importance when tackling the relationship between transparency and data protection. This section will first address the overriding public interest and this will be followed by Member State and third party documents.

343 See for example Case T-194/94, Carvel and Guardian Newspapers v Council, ECLI:EU:T:1996:156; Case T-174/95, Svenska Journalistförbundet v Council, ECLI:EU:T:1998:127; D. Curtin, “Citizens’ fundamental right of access to EU information: an evolving digital passepartout?” in Common Market Law Review 37 (2000), 35–36.

344 See for example A. Bohlin, Offentlighets principen, (Stockholm, 2001) 160. Secrecy exemptions can be applied only after harm test has been carried out, i.e. not solely based on the nature of the information.

345 See for example joined cases C-39/05 P and C-52/05 P, Sweden and Turco/ Council, ECLI:EU:C:2008:374, paras 38–40, case T-233/09, Access Info Europe / Council of the European Union, ECLI:EU:T:2011:105, Case C-280/11 P Council v Access Info Europe, ECLI:EU:C:2013:671, Case T-540/15 De Capitani v Parliament, ECLI:EU:T:2018:167.

5.1 OVERRIDING PUBLIC INTEREST

“Public interest” is a challenging concept, yet it appears in various different contexts.³⁴⁶ As there is not a lucid definition for public interest³⁴⁷, it leaves a wide margin for appreciation. In the context of European transparency legislation, the legislator has added an extra layer to it; the public interest has to be overriding.³⁴⁸ An explanation can be sought from the role given to the public interest in this context.

When an overriding public interest appears, access to information should be given even if such access would undermine the interests protected by the exceptions laid down in the Transparency Regulation.³⁴⁹

The exceptions laid down in the Transparency Regulation can be divided into two categories based on the overriding public interest test. The exceptions laid down in Article 4(1) do not contain the overriding public interest test when exceptions laid down in Articles 4(2) and 4(3) necessitate assessing whether an overriding public interest exists. The exceptions subject to the overriding public interest test relate to protection of commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, the purpose of inspections, investigations and audits and also matters where the internal decision-making -process is still ongoing. In some exceptional cases, it also covers the time post decision-making. As mentioned in the beginning of this section, when an interest protected by an exception is subject to the overriding public interest test, the document has to be disclosed when such an interest exists even if the disclosure undermines the interests protected by the said exceptions.³⁵⁰

The legislator has not given a clear indication as to how to assess the existence of an overriding public interest and the Court has also been quite prudent not to open the Pandora’s box in relation to the overriding public interest. Despite the scarce guidance, two different conditions for assessing whether there is an overriding public interest can be drawn from the legal framework. The Court of Justice of the European Union has also provided procedural guidance for assessing the existence of the overriding public interest.³⁵¹

346 See for example Regulation (EC) No 679/2016 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1–88).

347 See for example Case T36/04, API v Commission, ECLI:EU:T:2007:258, para 94.

348 Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents (OJ L 145, 31.5.2001, p. 43–48), Article 4.

349 Joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, para 44.

350 Ibid.; see also for instance Birkinshaw P. Government & Information – the Law Relating to Access, Disclosure

& their Regulation, (Tottel Publishing, 2005), 196–202.

351 See joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, paras 28, 40, 44.

The first indication in the Union case-law for assessing when the criteria of the overriding public interest test are met was delivered in the Turco case.³⁵² The CJEU held that legal advice given by the Council’s legal service in the course of legislative procedure should, in principle, be disclosed to the public. In its reasoning, the Court quite firmly stated that it is in the public interest to know what the legislation is based on, and as such also have access to legal advice given during such a process. Furthermore, when setting the three steps for assessing whether the legislative documents should be disclosed, the CJEU stated that even if the interests protected by the said exception would be undermined by the disclosure, the disclosure is justified when the public interest to know relates to the legislative process.³⁵³ Support for the adopted approach can be drawn from Recital 6 of the Transparency Regulation. It states that wider access to documents should be granted when the institution is acting in its legislative capacity.³⁵⁴

The second indication for assessing whether the circumstances of the case form an overriding public interest can be drawn from the Aarhus Regulation.³⁵⁵ The Aarhus Regulation governs access to environmental information received or produced by the Union institutions. Some presumptions regarding the overriding public interest are laid down in Article 6 of the Aarhus Regulation. With certain restrictions, the overriding public interest is deemed to exist when the information requested relates to emissions into the environment. The Article also stipulates more generally that it should be taken into consideration if the information requested relates to emissions into the environment.³⁵⁶

Thus, two different occasions where an overriding public interest is presumed can be identified. First, the legal advice given in the course of the legislative process and secondly, information relating to emissions into the environment. The overriding public interest is a rather powerful provision as it contains the idea of allowing some degree of harm for the protected interests when disclosing the document and the consequences of stating something as an overriding public interest are quite far reaching. It is therefore understandable that the Court of Justice refers to it sparingly.

In the context of the Turco case, the Court of Justice of the European Union also provided guidelines for assessing whether the circumstances of the case create

352 Joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374.

353 Joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, paras 38, 40, 44, 45–50, 59–60, 67–68. For disclosing information in the course of legislative procedure, see also case T-540/15, De Capitani v Parliament, ECLI:EU:T:2018:167.

354 Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents (OJ L 145, 31.5.2001, p. 43–48), recital 6.

355 Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13–19).

356 Ibid.

an overriding public interest.³⁵⁷ Furthermore, it has given a clear indication of who should conduct the overriding public interest test. The Court has seen that the institution has the best opportunity to assess whether an overriding public interest exists.³⁵⁸ Hence, the duty to examine whether the qualifications for an overriding public interest are met is for the institution. Naturally, it might advance the applicant’s cause to draw the institution’s attention to such circumstances as might form the basis for an overriding public interest. However, even when such remarks have not expressly been put forward, the institution should assess on its own initiative whether the qualifications for the overriding public interest are met.

This is a logical approach; the applicant is not in a position to know the detailed content of the requested document and it would therefore be disproportionate to set an onus on the applicant. As the institution is in a better position to conduct the overriding public interest test, having a clear picture of the content of the document, it is logical to set the obligation on the institution. However, it appears that so far, the institutions have not released documents based on the overriding public interest test. In the aftermath of the Turco decision, the General Secretariat of the Council has disclosed an increasing number of documents containing legal advice, but it is not apparent that those documents have been released based on the overriding public interest test. Apparently, the institutions are simply considering the public interest when balancing the interests in the first phase.³⁵⁹

5.2 MEMBER STATE AND THIRD PARTY DOCUMENTS

Before the current Transparency Regulation, the Member States had the right to veto when access to documents originating from them was requested. This right of veto was abolished when the Transparency Regulation entered into force.³⁶⁰ The abolishment of the veto was considered one of the improvements strengthening transparency.³⁶¹ Thus, regardless of the original source or author of the document, it is for the institution to decide whether to disclose the document.³⁶²

357 Joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, paras 38, 40, 44, 45–50, 59–60, 67–68.

358 See for example Case T-529/09, In ’t Veld v Council, ECLI:EU:T:2012:215, para 20; Case T36/04, API v Commission, ECLI:EU:T:2007:258, paras 54, 94.

359 See for example also B. Driessen, Transparency in EU Institutional Law: A Practitioner’s Handbook, (Kluwer 2012) 70.

360 C. Malmström, “Sveriges agerande i Öppenhetsmål inför EG-domstolen – politik och juridik hand in hand”

in Europarättslig tidskrift, 10 (2008), 11–20; Council decision on public access to Council documents, 20.12.1993.

361 Ibid.

362 See, to that effect, for example Case C-135/11 P, IFAW International Tierschutz-Fonds gGmbH /European Commission, ECLI:EU:C:2012:376, paras 57, 61.

Even if the institution has to make the final decision on whether to disclose the document and it is responsible for the lawfulness of the said decision, it is bound to a certain procedural basis laid down in the Transparency Regulation, and finally also to the opinion of the Member State. The Transparency Regulation provides some safeguards, which guarantee that the interests of the Member States and third parties shall be taken into account when assessing the disclosure of the document.³⁶³

Article 4 of the Transparency Regulation contains clear exceptions in paras 1–3 when the provisions in paragraphs 4–7 are rather procedural. These provisions set the guidelines on how to apply exceptions in some particular cases. According to Article 4(5) of the Transparency Regulation, a Member State may request that the institution not disclose a document originating from that Member State without its prior agreement. Article 4(4) in turn stipulates how to release documents originating from a third party.

The institutions should consult the Member States when releasing documents originating from them. However, it is of utmost importance to note that sole procedural actions cannot be regarded as sufficient on the institutions’ part. Firstly, following from the abolishment of the veto, there has been an onus on the Member State to provide reasons when it denies the further disclosure of the said document.

It cannot simply ban the disclosure of the document.³⁶⁴ Secondly, the Member State is bound to exceptions laid down in the Transparency Regulation.³⁶⁵ Thus the Member State cannot base its denial, for example, on national legislation. The approach adopted by the Court is quite reasonable, as the institution would hardly be in a position to assess whether such refusal is reasonably motivated.

Once the Member State has stated reasons for the refusal, it is for the institution to assess whether the given reasoning finally complies with the Transparency Regulation.³⁶⁶ The institution cannot satisfactorily fulfil its obligation to give a reasoned answer to the applicant by simply referring to the negative answer from the Member State.³⁶⁷ This seems quite natural; after all, it is the institution who has to defend the possible complaint later, for example in court. The Court of Justice has recently specified how the institution can fulfil this obligation. First, the institution must ensure that the reasons given by the Member State actually exist. Second, the

363 According to Article 4(5) of the Regulation 1049/2001 a Member State may request the institution not to disclose a document originating that Member State without its prior agreement.

364 Formerly Member States had the right to veto the disclosure of a document originating from them. However, this was changed when the current Regulation 1049/2001 on public access to documents was adopted in 2001.

See also for instance E. Nieto-Garrido and I.M. Delagado, European Administration Law in the Constitutional Treaty, (Oxford, 2007) 93–97.

365 See, to that effect, for example case C-135/11 P, IFAW International Tierschutz-Fonds gGmbH /European Commission, EU:C:2012:376, para 34.

366 Case C-135/11 P, IFAW International Tierschutz-Fonds gGmbH /European Commission, ECLI:EU:C:2012:376, para 62.

367 Ibid.

institution must refer to these reasons in its decision. However, the institution is not obliged to conduct an exhaustive examination to decide whether the reasons given by the Member State are applicable. The further reasoning of the Court of Justice seems to explain this. The duty to finally assess whether the reasons provided by the Member State are actually applicable is on the Court itself. It is therefore necessary for the Court also to request the withheld documents.³⁶⁸ Thus the Member State’s right to be heard before releasing a document originating from them can be placed somewhere between a procedural right and substantive exception. It is certainly a procedural right, but based on the Court’s second round of IFAW judgments it appears to have some relics from the earlier right to veto as well. Even if the Member State is not entitled to simply deny the disclosure, the institution’s duty is satisfied with a rather prima facie type of examination.

Compared with Member States’ right to deny the further disclosure of the document as long as the denial is reasoned, the procedural rights of other third parties are not as strong. When assessing the disclosure of the information, the institution has an obligation to consult the third party from which the document originates. However, Article 4(4) of the Transparency Regulation does also contain the possibility not to consult the third party. When it is clear that the document shall or shall not be disclosed, the institution is not obliged to consult the third party.

Thus, when deciding on the disclosure, the institution is not obliged to consult the third party when it is evident that the consultation is not necessary.