Kingdom of Sweden v European Commission and MyTravel Group plc.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 21 July 2011

Case C-506/08 P

Kingdom of Sweden

v

MyTravel Group plc

and

European Commission

(Appeal – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Article 4(2), second indent, and Article 4(3), second subparagraph – Exceptions to the right of access concerning the protection of court proceedings and legal advice and the decision-making process – Control of concentrations – Commission documents drawn up in the context of a procedure which led to a decision declaring a concentration operation incompatible with the common market – Documents drafted following the annulment of that decision by the General Court)

Summary of the Judgment

1. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

2. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making processl

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

3. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

4. European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of legal advice

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

1. Concerning the exception for protecting the decision-making process contained in Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the said Article 4(3) draws a clear distinction by reference to whether a procedure has been closed or not. It is only for part of the documents for internal use, namely, those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) allows access to be refused even after the decision has been taken, when their disclosure would seriously undermine the decision-making process of that institution. The Union legislature has thus taken the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question.

It is true that the mere possibility of using the exception in question to refuse access to documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is not in any way affected by the fact that the decision has been adopted. That does not, however, mean that the assessment which the institution concerned is called upon to make in order to establish whether or not the disclosure of one of those documents is likely seriously to undermine its decision-making process must not take account of the fact that the administrative procedure to which those documents relate has been closed. The reasons invoked by an institution and capable of justifying refusal of access to such a document of which communication has been requested before the closure of the administrative procedure might not be sufficient for refusing disclosure of the same document after the adoption of the decision, without that institution explaining the specific reasons why is considers that the closure of the procedure does not exclude the possibility that that refusal of access may remain justified having regard to the risk of a serious undermining of its decision-making process.

(see paras 77-82)

2. When an institution decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively compromise the interest protected by an exception under Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents upon which that institution is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical.

Thus, the Commission may not refuse access to the whole of a report on the control of concentrations without in any way supporting its arguments by detailed evidence, having regard to the actual content of the report, allowing it to be understood why disclosure of the latter would have been likely seriously to jeopardise the Commission’s decision-making process, even if the procedure to which that document relates had already been closed. In other words, the Commission must indicate the specific reasons why it considers that closure of the administrative procedure does not exclude the possibility that refusal of access to the report might remain justified having regard to the risk of the said decision-making process being seriously undermined.

(see paras 76, 89-90)

3. The fact that a document is likely to be published does not in itself exclude the possibility that that same document might fall within the exception in the second subparagraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. It is apparent from the wording of that article that the latter applies to any document containing opinions for internal use as part of deliberations and preliminary consultations within the institution.

(see para. 93)

4. When the Commission refuses an application for access to an opinion of the legal service on the control of concentrations on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is under a duty, in principle, to provide explanations as to how access to that document might actually and specifically undermine the interest protected by the exception contained in that article.

As regards the fear that disclosure of an opinion of the Commission’s legal service relating to a draft decision could lead to doubts as to the lawfulness of the final decision, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. Furthermore, the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by an institution because the latter’s legal service had given an unfavourable opinion would more often than not fail to arise if the statement of reasons for that act were reinforced, so as to make it apparent why that unfavourable opinion was not followed.

As regards the argument that the legal service might find itself obliged to defend before the Union judicature the legality of a decision in relation to which it had issued a negative opinion, an argument of such a general nature cannot justify an exception to the transparency required by Regulation No 1049/2001. The legal service cannot, moreover, find itself in such a situation when no further action concerning the legality of that decision can be envisaged before the Union judicature.

(see paras 110, 113-114, 116-117)

JUDGMENT OF THE COURT (First Chamber)

21 July 2011 (*)

(Appeal – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Article 4(2), second indent, and Article 4(3), second subparagraph – Exceptions to the right of access concerning the protection of court proceedings and legal advice and the decision-making process – Control of concentrations – Commission documents drawn up in the context of a procedure which led to a decision declaring a concentration operation incompatible with the common market – Documents drafted following the annulment of that decision by the General Court)

In Case C‑506/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 14 November 2008,

Kingdom of Sweden, represented by K. Petkovska and A. Falk, acting as Agents,

applicant,

supported by:

Kingdom of Denmark, represented by B. Weis Fogh and V. Pasternak Jørgensen, acting as Agents,

Kingdom of the Netherlands, represented by C. Wissels and J. Langer, acting as Agents,

Republic of Finland, represented by J. Heliskoski, acting as Agent,

interveners in the appeal,

the other parties to the proceedings being:

MyTravel Group plc, established in Rochdale (United Kingdom),

applicant at first instance,

European Commission, represented by X. Lewis, P. Costa de Oliveira and C. O’Reilly, acting as Agents,

defendant at first instance,

supported by:

Federal Republic of Germany, represented by M. Lumma and B. Klein, acting as Agents,

French Republic, represented by E. Belliard, G. de Bergues and A. Adam, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented by E. Jenkinson and S. Ossowski, acting as Agents,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the...