REGIMES IN EUROPE
4. UNDERLYING PRINCIPLES
At the outset, the administration should be transparent. As it will be argued later in this thesis, transparent administration leads to less corruption and more open decision-making strengthens the democratic framework of society. It follows that disclosure of documents and information should rather be the presumption than an exception.321 This seems obvious when formulated like this. However, when taking this approach to a more practical level, it suddenly turns into a more challenging question. Instead of asking why a piece of information cannot be disclosed, the commonly rising question seems to be whether it could be disclosed.322 At first sight the difference might seem insignificant, and naturally both questions might lead to a similar outcome, i.e. disclosure of the same amount of information. However, it does reveal how the one posing the question addresses transparency; the presumption of disclosure is stressed differently. The first questioner presumes that the information will be disclosed unless there are particular reasons not to. The second questioner’s starting point is not to release the information unless there are particular reasons speaking in favour of the disclosure. The underlying principles in the European transparency framework strengthen the approach of the first questioner.
This section will examine the founding principles and some of the rules stemming from these principles in the public access regime in the European legal framework.
In some cases, the principles are fairly easy to identify. But in some cases, they are more implicit and need to be recognized or found.323 However, in both cases they illustrate the spirit of the European transparency regime. And even more importantly, they form the basis for the interpretation of law in situations where a potential tension between rules arises.
Many of the principles have been developed in the practice of the Court of Justice of the European Union and, in some cases, later incorporated into Union
321 See for instance Bailey S.H., Administrative Law, (London, 2005) 42–44; see also Case T-395/13, Samuli Miettinen, ECLI:EU:T:2015:648, para 21.
322 For example in National Information Law Conference, Canberra, 23–25 March 2011.
323 For more see Chapter I.
legislation. Often the examined principles and rules share the same fundamental object of granting the widest possible access to information and therefore might be partly overlapping.
4.1 WIDEST POSSIBLE ACCESS
The principle of widest possible access had already existed and was apparent in the European Union legal framework when it was finally clearly formulated in the recitals of the Transparency Regulation in 2001. The fourth recital of the Regulation states that “the purpose of this Regulation is to give the fullest possible effect to the right of public access to documents”. The actual impetus to this principle was given earlier in the Hautala case.324 The Hautala case can certainly be considered one of the breakthrough cases in European access to documents case-law. The principle of partial access was formulated in this case, but even more importantly, the Court based the partial access rule on the principle of widest possible access.
The principle was sought from Declaration No. 17 of the Maastricht Treaty and Code of Conduct.325 Thus the Court held that the possibility of disclosing the document partially had to be examined even if such a rule did not exist in the Council Decision on public access to documents.326 The Court’s ruling was based on the principle of the widest possible access, which was sought from the regulatory framework. The formulation of the widest possible access principle seems to be a classical example of how principles are recognized in Dworkin’s and Alexy’s terms, with the principle of widest possible access also gaining the necessary institutional support.327 First, it was recognized by the Court of Justice and later incorporated into the legislative act itself.
After its initial appearance, the principle of the widest possible access has been confirmed repeatedly in the Union’s case-law.328 Withholding information has been argued on several different grounds, however, it seems that this fundamental principle has not yet been challenged. Thus, it can be argued that widest possible
324 Case C-353/99 P, Council of the European Union v Heidi Hautala, ECLI:EU:C:2001:661, paras 80–83. See also D. Curtin, “Citizens’ fundamental right of access to EU information: an evolving digital passepartout?”
in Common Market Law Review 37 (2000), 16–18.
325 Ibid.
326 Council decision on public access to Council documents, 20 December 1993.
327 For institutional support, see for example R. Dworkin, Taking Rights Seriously, (Duckworth 1977) 39–45.
328 See for example C-135/11P, IFAW Internationaler Tierschutz-Fonds v Commission, 21 June 2012 (not yet published), para 49; Case C-506/08 P, Sweden v MyTravel and Commission, ECLI:EU:C:2011:496, para 75; Case C-266/05 P, Sison v Council, ECLI:EU:C:2007:75, para 63; Joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, para 36; Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission, ECLI:EU:C:2010:541, para 73; Case T-395/13, Samuli Miettinen, ECLI:EU:T:2015:648, para 17.
access has obtained a status as one of the core principles of public access to documents legislation.
The principle of widest possible access lays underneath most of the other core concepts and rules of the Transparency Regulation. For example, the wide definition of a document can be seen as an expression of this principle, and the narrow interpretation of the exceptions stems partly from the principle of the widest possible access. The overlapping characteristics of the elements introduced in this section are partially explained by this.
4.2 PARTIAL ACCESS
The principle of widest possible access emerges for example in the form of partial access to documents. This rule was first established in the case-law of the Court of Justice of the European Union. A Member of the European Parliament, Heidi Hautala, had requested a document containing information on arms export rules.
Even if the applicable rules did not contain provisions setting requirements for partial access, the said rules did not disallow such interpretation either. Thus, the Court of Justice concluded that it was not in line with the principle of proportionality to refuse partial disclosure of the document.329 This case-law was later incorporated into the legislation in Article 4(6) of the Transparency Regulation.330
The partial access rule was first developed or found in the early 2000s in the regulatory framework of the European Union. Also, most of the European Union Member States have provisions in their transparency legislation, which secure partial access to a document in cases where the document cannot be released entirely.331 As previously explained, this approach has rendered the difference between access to documents and access to information a minor one.332
In more practical terms, this rule sets the duty for the institutions to assess whether the document can be released partially when it is not entirely covered by the exception applied. It follows that those parts of the document which could be released without undermining the interests protected by the exceptions have to be disclosed. Quite rarely the requested documents would be entirely covered by one or more exceptions. In most cases some parts of the document can be released. An example of this is In ’t Veld case, where a Dutch Member of the European Parliament
329 Case C-353/99 P, Council of the European Union v Heidi Hautala, ECLI:EU:C:2001:661, paras 27–31;
Council decision on public access to Council documents, 20 December 1993.
330 According to Article 4(6) of the Regulation 1049/2001 if only parts of the requested document are covered by any of the exceptions, the remaining parts shall be released.
331 H. Kranenborg and W. Woermans Access to Information in the European Union – a Comparative Analysis of EC and Member State Legislation (Europa Law Publishing, 2005), 18–19.
332 See Chapter IV section 2.
had requested access to legal advice given by the Council’s legal service. The General Court itself examined the content of the said document and concluded that while it did include parts covered by some of the exceptions, there were indeed some parts which could have been disclosed.333
The partial access rule is also very closely linked to the institutions’ duty to examine the documents individually and to make decisions about disclosure based on the content. Only individual examination enables partial disclosure of the documents.
4.3 NARROW INTERPRETATION OF EXCEPTIONS
The exceptions to the right of access to documents must be interpreted narrowly.
This is another well-established element in the CJEU’s case-law.334 It is an element which clearly reflects the more general principle of the widest possible access to documents.335 This also reflects a more general approach in EU law; that the exceptions from the main rule should be interpreted restrictively. Hence this approach does not differ from general EU law.
The Court has given more concrete content for the principle of narrow interpretation by underlining the following elements. Firstly, the Court has been very precise that the institutions have the duty to ensure that the requested document actually contains the type of information which is protected by the exception applied.336 It follows that it does not suffice that the document is for example named “legal advice”, if it does not in reality contain any legal advice.
Consequently, withholding certain information requires that the institution verifies that the information is actually the type of information that is protected by the applied exception.
A second element of the narrow interpretation is the necessity to evaluate whether the interest protected by the exception would actually be endangered if the information was disclosed. Thus it does not suffice to ensure that the document actually contains information protected by the exception, but also that the actual disclosure of the information should somehow undermine the protection of that
333 Case T-529/09, In ’t Veld v Council, ECLI:EU:T:2012:215, paras 106, 112. See also case T-350/12P, In ’t Veld, ECLI:EU:C:2014:2039.
334 See for example Case T-395/13, Samuli Miettinen, ECLI:EU:T:2015:648, paras 58, 67; Case C-266/05 P, Sison v Council, ECLI:EU:C:2007:75, para 63; Joined cases C-39/05 P and C-52/05 P Sweden and Turco/
Council, ECLI:EU:C:2008:374, para 36; Joined cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission, ECLI:EU:C:2010:541, para 73; Case C-506/08 P, Sweden v MyTravel and Commission, ECLI:EU:C:2011:496, para 75.
335 See for example Case T-529/09, In ‘t Veld v Council, ECLI:EU:T:2012:215, paras 17–18.
336 Case T-395/13, Samuli Miettinen, ECLI:EU:T:2015:648, para 25.
interest.337 It follows that an assessment of the consequences of the disclosure is required when the exceptions are applied.338
Furthermore, the CJEU has on several occasions underlined on a more general level that all exceptions to the right of access must be interpreted narrowly.339 Hence it can be argued that the well-established principle of narrow interpretation requires that the scope of the exception cannot be extended by the interpretation. Thus, the scope of the said exception is strictly limited to the wording of the Transparency Regulation.
4.4 NO BLOCK EXEMPTIONS
One of the founding elements of European access to document regulation is that it covers all documents held by the EU institutions. In other words, no information is excluded from the scope of the Transparency Regulation solely based on the nature of the information or based on the origin of the document. This follows directly from the Transparency Regulation.340 Furthermore, based on well-established case-law, the assessment of the disclosure of the document must be based on the content of the document.341 These are the elements which form the basis for the underlying idea of “no block exemptions”.
The principle of no block exemptions is not explicitly formulated in the regulatory framework of transparency legislation and is therefore controversial to some degree.
Also, the recent case-law has tried heavily the limits of this principle.342 Nevertheless, its weight cannot be overlooked. Firstly, it has long roots in European thinking. The first indications of such thinking in the European Union can be traced all the way to pre-Amsterdam era and the regulatory framework of that time. In some early access to documents cases, the General Court refused to confirm the arguments which
337 See for example joined cases C-39/05 P and C-52/05 P Sweden and Turco/ Council, ECLI:EU:C:2008:374, para 49; joined cases T-424/14 and T-435/15, ClientEarth v Commission, ECLI:EU:T:2015:848, para 59.
338 See for example, Case C-280/11 P, Council v Access Info Europe, ECLI:EU:C:2013:671, para 31.
339 See for example joined cases T-424/14 and T-435/15, ClientEarth v Commission, ECLI:EU:T:2015:848, para 58; Case C-266/05 P, Sison v Council, ECLI:EU:C:2007:75, para 63; example joined cases C-39/05 P and C-52/05 P, Sweden and Turco/ Council, ECLI:EU:C:2008:374, para 36; Case C-280/11 P Council v Access Info Europe, ECLI:EU:C:2013:671, para 30.
340 Regulation 1049/2001, article 1(4).
341 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. See also P. Birkinshaw, “Review of V. Deckmyn and I. Thompson (eds.), Openness and Transparency in the European Union” in European Public Law 4 (1998), 614.
342 See for example joined cases T-424/14 and T-435/15, ClientEarth v Commission, ECLI:EU:T:2015:848, paras 64–65; case C-562/14 P, Sweden and Spirlea v European Commission, ECLI:EU:2017:356 and case C-271/15 P, Sea Handling SpA, in liquidation, formerly Sea Handling SpA v commission, ECLI:EU:C:2016:557. However, see also case C-331/15 P, French Republic v Carl Schlyter, ECLI:EU:C:2017:639. For the presumption of non-disclosure, see D. Curtin & P. Leino, “In search of transparency for EU law-making: Trilogues on the cusp of dawn” in Common Market Law Review 6 (2017), 1078–1079.
suggested that in certain cases whole policy areas were to be excluded from the scope of the access rules.343 Further, when no common legal ground can be found in the wider European context, the profound elements of transparency legislation should be sought from Member States where it has stabilized position in the general legal framework. In such settings, the non-existence of block exemptions is considered one of the core principles of the said legislation.344 Finally, the underlying principle of no block exemptions is apparent in the rules laid down in the Transparency Regulation. The rules reflecting this principle relate to the origin of the document, exceptions and classified documents.
Adopting other types of approach could narrow down public access to documents.
As a civil servant, I do understand the beauty of the idea of block exemptions in terms of minimizing administrative work. However, this could easily lead to situation where certain information is not disclosed even when there is no reasonably foreseeable danger of harming interests protected by the exemptions. Taking particularly into account how the case-law and the CJEU’s approach has enhanced public access to the EU institutions’ documents in comparison to general practice applied by the institutions, this risk is not purely hypothetical.345