Access to Documents, Accountability and the Rule of Law—Do Private Watchdogs Matter?

Author:Dariusz Adamski
Publication Date:01 Jul 2014
Access to Documents, Accountability and
the Rule of Law—Do Private
Watchdogs Matter?
Dariusz Adamski*
Abstract:The ECJ has not so far developed a single, consistent approach to cases in
which the right to access official documents is exercised by individuals and organisations
pursuing their individual cause (private watchdogs). While in some cases the Luxem-
bourg jurisprudence has followed a restrictive approach, supporting interests and sec-
ondary law provisions conflicting with transparency, in other it has unconditionally
endorsed a supreme character of the access right. This contribution confronts both of the
approaches whenever the access right exercised by private watchdogs has clashed with
confidentiality stemming from secondary law provisions: from state aid, staff rules, data
protection, antitrust and beyond. The article argues that most often the judicial standard
restricting the access right interferes with a feedback relationship between transparency,
accountability and the rule of law. This relationship, when properly construed and
appraised, may form a basis for an arguably more uniform and stable judicial standard.
I Introduction
The most significant piece of EU legislation dealing with access to documents—ie
Regulation 1049/2001 of the European Parliament and of the Council of 30 May
2001 regarding public access to European Parliament, Council and Commission
documents1—highlights three main goals of openness in the EU.2These are: delibera-
tiveness, legitimacy building and accountability.3
* Associate Professor, Faculty of Law, Administration and Economics, University of Wroclaw, Poland
( The author is thankful to Prof. Carol Harlow for her valuable remarks
on an earlier draft of the text. The usual disclaimer applies.
1O. J. 2001 L 145/43.
2While openness is certainly a value broader than the right to access official documents (the right to
information), the latter is one of the main instruments of achieving both the former and the related goal
of transparency. For a broader account on the specifics of openness and transparency, see esp. D. Curtin,
Executive Power of the European Union (OUP, 2009), at 204–245. Openness is in turn instrumental to the
rule of law. As Harlow remarked in this context, ‘open government or “government in the sunshine”
came to be seen as one of the most powerful antidotes to arbitrariness in all its forms, including the
“strong,” unfettered and unstructured discretionary executive power that became the primary target of
administrative law controls during the twentieth century’: C. Harlow, ‘Transparency in the European
Union: “Weighing the Public and Private Interests”’, in J. Wouters, L. Verhey and P. Kiiver (eds),
European Constitutionalism Beyond Lisbon (Intersentia Uitgevers, 2009), at 210.
3‘Openness enables citizens to participate more closely in the decision-making process and guarantees that
the administration enjoys greater legitimacy, and is more effective and more accountable to the citizen
in a democratic system’: Regulation 1049/2001, preamble, § 2.
European Law Journal, Vol. 20, No. 4, July 2014, pp. 520–543.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
According to the first goal, ‘a significant objective of openness in democratic
government is to enable effective participation in the policy process itself by means of
effective access to the deliberative process and voice within it. The ability
to participate in “social dialogue” depends to a large extent on accessibility of
information and accessibility of the dialogue itself.’4The second goal—legitimacy
building—is related to the assumption that open institutions are more trustworthy
and more conducive to allegiance than the secretive ones. This argument should be
important particularly to political structures that cannot—for historic reasons—
develop allegiance based on tribal instincts. The goal of legitimacy building, however,
should not be perceived in isolation from the other two, as it heavily depends on
both. As Scharpf has put it famously, ‘Under modern (Western) conditions . . .
legitimacy has come to rest almost exclusively on trust in institutional arrangements
that are thought to ensure that governing processes are generally responsive to the
manifest preferences of the governed (input legitimacy, “government by the people”)
and/or that the policies adopted will generally represent effective solutions to
common problems of the governed (output legitimacy, “government for the people”).
Taken together, these two types of arguments constitute the core notions of
democratic legitimacy.’5The input legitimacy, as Scharpf calls it, should be
guaranteed by the already discussed deliberativeness of decision-making processes,
while the output legitimacy is primarily secured—at least in any polity aspiring
to be democratic—by accountability. Dyrberg framed the relationship between
transparency (as a specific manifestation of the policy-making openness) and
accountability very accurately, stating that: ‘Transparency may be considered part of
accountability or a prerequisite to it: how can the public hold public authorities
accountable if the public is not allowed to know what goes on within the public
authorities, or if what goes on is obscure?’.6By the same token transparency in
general (and access to documents in particular) facilitates ‘the citizens’ control of the
actions and inactions of public bodies, on the premise that power corrupts.’7What is
most important, ‘Without effective monitoring...some of these officials will be
work-shy, careless, corrupt, or otherwise willing to abuse the power afforded by
their government positions. Indeed, if they want to retain power and are given
unrestrained discretion to manage information access, we might expect them to
disclose information that makes the administration look public spirited, effective, and
efficient, but withhold information to the contrary.’8The right to access documents is
4D. Curtin, ‘The Fundamental Principle of Open Decision-Making and EU (Political) Citizenship’, in D.
O’Keeffe and P. Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999), at 71–91,
74. Quite remarkably, the Commission has framed the goal more narrowly, not as referring to any
decision making, but only the one which is ‘democratic’—arguably only political, esp. legislative: ‘The
main purpose of laws on freedom of information is to enable citizens to participate more closely in
democratic decision-making’: Green Paper. Public Access to Documents held by institutions of the
European Community, 18 April 2007, COM(2007)185, 11.
5F. Scharpf, Problem Solving Effectiveness and Democratic Accountability in the EU, at 1, available at
6P. Dyrberg, ‘Accountability and Legitimacy: What is the Contribution of Transparency?’, in A. Arnull
and D. Wincott (eds), Accountability and Legitimacy in the European Union (Oxford University Press,
2002), at 83.
7D. Curtin, ‘Citizens’ Fundamental Right of Access to EU Information: An Evolving Digital Passepar-
tout’, (2000) 37 CML Review 7–41, 8.
8A. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, The
Chicago University Law School. Public Law and Legal Theory Working Paper, at 10.
July 2014 Transparency, Accountability and the Rule of Law
© 2013 John Wiley & Sons Ltd.

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