Orders nº T-345/06 of Court of First Instance of the European Communities, July 14, 2008

• Resolution Date: July 14, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-345/06

1. In the present reference, the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria) (Independent Administrative Chamber for the Land of Lower Austria) asks whether acts that are required to be published in accordance with Article 254 EC are -documents- within the meaning of Article 2(3) of Regulation (EC) No 1049/2001 (-the Access to Documents Regulation-), ( 2 ) and whether regulations or parts thereof have binding force if, contrary to Article 254(2) EC, they have not been published in the Official Journal.

Legal framework

Relevant Community law provisions regarding publication of or access to documents

Treaty provisions

2. The second paragraph of Article 1 EU states:

   -This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.-

3. Article 254 EC provides:

   -1. Regulations, directives and decisions adopted in accordance with the procedure referred to in Article 251 [( 3 )] shall be - published in the Official Journal of the European Union. -

2. Regulations of the Council and of the Commission, as well as directives of those institutions which are addressed to all Member States, shall be published in the Official Journal of the European Union. -

3. Other directives, and decisions, shall be notified to those to whom they are addressed and shall take effect upon such notification.-

4. Article 255 EC provides:

   -1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.-

   
   

   The Access to Documents Regulation

5. The first four recitals lay the groundwork for the regulation by emphasising the importance of openness, transparency and accountability. The first recital expressly invokes Article 1 EU. The second recital explains that greater openness guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. The third recital indicates that the regulation -consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process-. The fourth recital sets out the objectives of the regulation:

   -The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) [EC].-

6. Article 1(a) of the Access to Documents Regulation states that the purpose of the regulation is

   -to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as -the institutions-) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents-.

7. Article 2(1) states that -[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation-.

8. Article 2(3) provides that the regulation applies -to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union-. Article 2(5) allows -sensitive documents, as defined in Article 9(1)-, to be -subject to special treatment in accordance with that Article-.

9. Article 3(a) defines -a document- as -any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution-s sphere of responsibility-.

10. Articles 4 and 9 make specific provision for certain exceptions to the principle of public access to documents. Thus, Article 4 provides:

    -1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

    (a) the public interest as regards:

    - public security,

    - defence and military matters,

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11. Article 9(1) defines -sensitive documents- as -documents originating from the institutions, or the agencies established by them, from Member States, third countries or International Organisations, classified as -TRES SECRET/TOP SECRET-, -SECRET- OR -CONFIDENTIEL- [sic] in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters-. The remainder of Article 9 provides, inter alia, that applications for access to sensitive documents must themselves be handled by persons who have a right to acquaint themselves with their content. Those persons are also to decide what reference may be made to such documents in the public register of documents provided for by Article 11. Institutions refusing access to such documents must give reasons; and the institution-s rules concerning public access are to be made public.

12. Article 13 contains specific provisions on publication in the Official Journal:

    -1. In addition to the acts referred to in Article 254(1) and (2) of the EC Treaty - the following documents shall, subject to Articles 4 and 9 of this Regulation, be published in the Official Journal:

    (a) Commission proposals;

    (b) Common positions adopted by the Council in accordance with the procedures referred to in Article 251 and 252 of the EC Treaty, and the reasons underlying those common positions, as well as the European Parliament-s positions in these procedures;

    --

    -2. As far as possible, the following documents shall be published in the Official Journal:

    -

    (c) directives other than those referred to in Article 254(1) and (2) of the EC Treaty, decisions other than those referred to in Article 254(1) of the EC Treaty, recommendations and opinions.

3. --

   
   

   Regulation No 2320/2002

13. Article 1 of Regulation (EC) No 2320/2002 ( 4 ) explains that the main objective of that regulation is to -establish and implement appropriate Community measures, in order to prevent acts of unlawful interference against civil aviation-.

14. Article 4(1) and (2) provides:

    -1. The common basic standards on aviation security measures are - laid down in the Annex.

2. The necessary measures for the implementation and the technical adaptation of these common basic standards shall be adopted in accordance with the procedure referred to in Article 9(2), ( 5 ) due consideration being given to the various types of operation and to the sensitivity of the measures relating to:

   (a) performance criteria and acceptance tests for equipment;

   (b) detailed procedures containing sensitive information;

   (c) detailed criteria for exemption of security measures.-

15. Article 6 provides:

    -Member States may apply, in compliance with Community law, more stringent measures than those laid down in this Regulation. As soon as possible after their application, Member States shall inform the Commission of the nature of these measures.-

16. Article 8 on dissemination of information provides:

    -1. Without prejudice to the public right of access to documents as laid down in [the Access to Documents Regulation]

    (a) the measures relating to

    (i) performance criteria and acceptance tests for equipment;

    (ii) detailed procedures containing sensitive information;

    (iii) detailed criteria for exemption from security measures;

    referred to in Article 4(2);

    -

    shall be secret and not be published. They shall only be made available to the authorities referred to in Article 5(2),[ ( 6 )] which shall communicate them only to interested parties on a need-to-know basis, in accordance with applicable national rules for dissemination of sensitive information.

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17. Article 12 provides that penalties for breaching the provisions of the Regulation shall be -effective, proportionate and dissuasive-.

18. The Annex referred to in Article 4(1) was duly published as an integral part of the Regulation. It contains, inter alia, common basic standards on screening of passengers (point 4.1) and screening of cabin baggage (point 4.3). All departing passengers are to be screened to prevent prohibited articles from being introduced into the security restricted areas and on board an aircraft. Their cabin baggage is to be screened prior to being allowed into security restricted areas and on board an aircraft and any prohibited articles are to be removed from the passenger-s possession or the passenger denied access into the security restricted area or the aircraft as appropriate.

19. Point 1.18 of the Annex defines a -prohibited article- as an -object which can be used to commit an act of unlawful interference and that has not been properly declared and subjected to the applicable laws and regulations-. An indicative list of such prohibited articles is found in the (published) -Attachment- to the Annex, which contains guidelines for the classification of prohibited articles. The introductory sentence reads: -Guidelines are given below for the possible shapes of weapons and restricted items, common sense shall however prevail in assessing whether an object...