| EUROPEAN COMMUNITY — Institutions — Public right of access to documents — Request by member state not to disclose document originating from that state — Whether institution bound to comply with request — Parliament and Council Regulation (EC) No 1049/2001, art 4(5)
Kingdom of Sweden and others v Commission of the European Communities and others (Case C-64/05P) [2007] WLR (D) 341
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Lenaerts, Arestis, Lõhmus, Schiemann, Kūris, Juhász, Malenovský, Klučka and Levits: 18 December 2007
Where a member state requested a Community institution not to disclose to a third party a Community document originating from that state, the institution was not bound to comply with that request without question; rather, there had to be a dialogue as to whether one of the specified exceptions to disclosure existed in the case.
The Grand Chamber of the Court of Justice of the European Communities so held when allowing an appeal from the judgment of the Court of First Instance of the European Communities in IFAW Internationaler Tierschutz-Fonds GmbH v Commission of the European Communities (Case T-168/02) [2005] 1 WLR 1252.
Art 4 of Regulation 1049/2001 on public access to European Parliament, Council and Commission documents provides: “(1) The institutions shall refuse access to a document where disclosure would undermine the protection of [specified matters]. (2) The institutions shall refuse access to a document where disclosure would undermine the protection of [specified matters] unless there is an overriding public interest in disclosure. (3) Access to [various further categories of documents] shall be refused …unless there is an overriding public interest in disclosure …(5) A member state may request the institution not to disclose a document originating from that member state without its prior agreement …”
The applicant in Case T-168/02, an animal welfare and nature conservation body, requested access to various documents received by the Commission from certain German public authorities in connection with a proposed industrial project on an area protected under the Community Habitats Directive, but after the German Government had requested that the documents not be disclosed, the Commission refused the request. The Court of First Instance [2005] 1 WLR 1252 rejected the applicant’s application for annulment of that decision, on the ground that a request under art 4(5) of Regulation 1049/2001 constituted an instruction not to disclose which the institution had to comply with in all cases. The Kingdom of Sweden, an intervener, appealed to the Court of Justice.
THE COURT, allowing the appeal and annulling the Commission’s refusal decision, said that when an institution received a request from a state under art 4(5), it had immediately to begin a dialogue with the state as to the possible application of one of the exceptions stated in art 4(1)–(3). If after such dialogue the state still objected to such disclosure, it had (contrary to the Court of First Instance’s holding) to give reasons for its objection, and if it failed to do so, the institution had to grant access if it considered that none of the exceptions applied. The Community judicature had the power of review when there was a refusal of disclosure based on an assessment of the applicability of the exceptions either by the member state or the institution.
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