| EUROPEAN COMMUNITY — Institutions — Public right of access to documents — Whether entailing duty on institutions to draw up documentation of activities — Whether public having right to information not contained in documents
WWF European Policy Programme v Council of the European Union (supported by Commission of the European Communities, intervener) (Case T-264/04)
CFI: President of Chamber Legal, Judges Wiszniewska-Bialecka and Moavero Milanesi: 25 April 2007
The public right of access to documents of the EC institutions entailed in principle an obligation on the part of the institutions to document their activities.
The Fourth Chamber of the Court of First Instance of the European Communities so held, inter alia, when dismissing the applicant’s action for annulment of a decision of the Council refusing access to certain documents.
Art 2 of European Parliament and Council Regulation (EC) No 1049/2001 on public access to Parliament, Council and Commission documents provides: “(1) Any … natural or legal person … in a member state has a right of access to documents of the institutions, subject to … this Regulation … (3) This Regulation shall apply to all documents held by an institution …” Art 4(1) provides: “The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards [specified matters]”.
In connection with a meeting of a Commission committee in which consideration had been given to issues of trade and relations with third countries after the Cancun World Trade Organisation conference of 2003, the claimant sought access to (i) preparatory papers presented to members of the committee and (ii) any minutes or resolutions recorded at the meeting. The Council refused the request under head (i), on the ground of art 4(1)(a) of Regulation 1049/2001, and stated, in relation to head (ii), that there were no minutes of the meeting. In its action, the applicant challenged inter alia (1) the failure to take minutes and (2) the Council’s refusal, in the absence of minutes, to provide the applicant with information on the content of discussions that had taken place at the meeting.
THE COURT said, in connection with those issues: (1) it would be contrary to the requirement of transparency underlying Regulation 1049/2201 for institutions to rely on the fact that documents did not exist in order to avoid the application of the Regulation. Accordingly, the institutions were under an obligation, in so far as possible and in a non-arbitrary and predictable manner, to draw up and retain documentation relating to their activities. However, in the present case there was good reason for the absence of minutes and the Council had not, on the facts, acted in an unpredictable or arbitrary manner. (2) The scope of the Regulation extended only to “documents”, by art 2(3), and not to information as such: Meyer v Commission of the European Communities (Case T-106/99) [1999] ECR II-3273. It was true that it was stated in Hautala v Council of the European Union (Case C-353/99P) [2002] 1 WLR 1930 that the disclosure requirement covered not only documents but also information within those documents: but that was only when documents existed. Since in the present case there were no minutes of the meeting in question, the Council was not obliged to provide information on the content of items in the meeting.
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