Case C-28/08 P, Bavarian Lager

Commission rightfully refusing Bavaria Lager access to certain EU documents

(Mensing & Stetcher 1879)
By this appeal, the Commission of the European Communities sought the annulment of the judgment of the Court of First Instance of the European Communities (now “the General Court’) of 8 November 2007 in Case T-194/04 Bavarian Lager v Commission [2007], on which I wrote this post,  

By that  judgment, the General Court had annulled the Commission’s decision of 18 March 2004, rejecting the request by Bavarian Lager for access to the full minutes of a meeting of 11 October 1996, held in the context of a procedure for failure to fulfil obligations

According to its Preamble, the purpose of Regulation 1049/2010 was 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 principle, all documents of the institutions should be accessible to the public.

According to Art. 2 of Regulation 1049/2001, “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, had a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.”

However, certain public and private interests could be protected by way of exceptions. In particular, institutions were entitled to refuse access to a document where disclosure would inter alia undermined the protection of “privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data” or “ the purpose of inspections, investigations and audits”. This was provided there was no overriding public interest in disclosure.

Bavarian Lager was established in 1992 for the importation of German beer for public House and bars in the United Kingdom, situated primarily in the North of England.
However, Bavarian Lager was not able to sell its product, since a large number of publicans in the United Kingdom were tied by exclusive purchasing contracts obliging them to obtain their supplies of beer from certain breweries.

Under the Supply of Beer (Tied Estate) Order 1989 SI 1989/2390, British breweries holding rights in more than 2 000 pubs were required to allow the managers of those establishments the possibility of buying a beer from another brewery, on condition that it was conditioned in a cask and had an alcohol content exceeding 1.2% by volume. That provision was commonly known as the “Guest Beer Provision” (“the GBP”).

However, most beers produced outside the United Kingdom could not be regarded as “cask-conditioned beers”, within the meaning of the GBP, and thus did not fall within its scope.

Considering that the GBP constituted a measure having equivalent effect to a quantitative restriction on imports, and was thus incompatible with Art. 30 of the EC Treaty (now, after amendment, Art. 28 EC), Bavarian Lager lodged a complaint with the Commission by letter of 3 April 1993, registered under reference P/93/4490/UK.

Following its investigation, the Commission decided, on 12 April 1995, to institute proceedings against the United Great Britain and Northern Ireland under Art. 169 of the EC Treaty (now Art. 226 EC).

On 11 October 1996, the aforementioned meeting was held, which was attended by officers of the Directorate-General (DG) for the Internal Market and Financial Services, officials of the United Kingdom Government Department of Trade and Industry and representatives of the Confederation des Brasseurs du Marche Commun. Bavarian Lager had requested the right to attend the meeting [of 11 October 1996] in a letter dated 27 August 1996, but the Commission refused to grant permission to attend.

On 4 May 1998, Bavarian Lager addressed a request to the Commission under the Code of Conduct for access to all of the submissions made under file reference P/93/4490/UK by 11 named companies and organisations and by three defined categories of person or company. The Commission refused the initial application on the ground that the [said] Code of Conduct applied only to documents of which the Commission was the author. The confirmatory application was rejected on the grounds that the Commission was not the author of the document in question and that any application had to be sent to the author.

On 8 July 1998, Bavarian Lager complained to the European Ombudsman under reference 713/98/IJH, stating, by letter dated 2 February 1999, that it wished to obtain the names of the delegates of the CBMC who had attended the meeting on 11 October 1996 and the names of the companies and any persons who fell into one of the 14 categories identified in the original request for access to documents containing the communications to the Commission under file reference P/93/4490/UK.

 By e-mail of 5 December 2003, Bavarian Lager sent a request to the Commission for access to the documents referred to above, based on Regulation 1049/2001.

The Commission replied to that request by letter of 27 January 2004 stating that certain documents relating to the meeting of 11 October 1996 could be disclosed, but adding that five names had been blanked out from the minutes of the meeting of 11 October 1996, following two express refusals by persons to consent to the disclosure of their identity and the Commission’s failure to contact the remaining three attendees.

By the contested decision, the Commission rejected the confirmatory application of Bavarian Lager. It confirmed that Regulation 45/2001 applied to the request for disclosure of the names of the other participants. As Bavarian Lager had not established an express and legitimate purpose or needed for such a disclosure, the conditions set out by Art. 8 of that regulation had not been met and the exception provided for in Art. 4(1)(b) of Regulation 1049/2001 applied. It added that, even if the rules on the protection of personal data did not apply, it would nevertheless had had to refuse to disclose the other names under Art. 4(2), third indent, of Regulation 1049/2001 so as not to compromise its ability to conduct inquiries.”

By the judgment under appeal, the General Court annulled the contested decision.

Regarding access to the full minutes of the meeting of 11 October 1996, the General Court took the view, that Bavarian Lager’s request was based on Regulation 1049/2001.

Relationship between Regulation 45/2001 and Regulation 1049/2001

The Court of Justice of the European Union stressed that Regulation 45/2001 and 1049/2001 were adopted on dates very close to each other. They did not contain any provisions granting one regulation primacy over the other. In principle, their full application should be ensured.

The Court held that the only express link between those two regulations was established in Art. 4(1)(b) of Regulation 1049/2001, which provided for an exception to access to a document where disclosure would undermined the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

Where a request based on Regulation 1049/2001 sought to obtain access to documents including personal data, the provisions of Regulation 45/2001 become applicable in their entirety, including Arts 8 and 18 thereof by not taking account of the reference in Art. 4(1)(b) of Regulation 1049/2001 to the legislation of the Union concerning the protection of personal data and thus to Regulation 45/2001, the General Court dismissed at the outset, in paragraph 107 of the judgment under appeal, the application of Art. 8(b) of Regulation 45/2001, and, in paragraph 109 of the judgment under appeal, the application of Art. 18 of Regulation 45/2001. And yet those Articles constituted essential provisions of the system of protection established by Regulation 45/2001.

Consequently, in the view of the Court of Justice, the particular and restrictive interpretation which the General Court gave to Art. 4(1)(b) of Regulation 1049/2001 did not correspond to the equilibrium which the Union legislature intended to establish between the two regulations in question.

The Court of Justice held that the General Court was right to conclude that the list of participants in the meeting of 11 October 1996 appearing in the minutes of that meeting thus contained personal data for the purposes of Art. 2(a) of Regulation 45/2001, since the persons who participated in that meeting could be identified.

The Court held that, therefore, the decisive question was whether the Commission could grant access to the document including the five names of the participants in the meeting of 11 October 1996, in compliance with Art. 4(1)(b) of Regulation 1049/2001 and Regulation 45/2001.

First of all, it should be noted that Bavarian Lager was able to have access to all the information concerning the meeting of 11 October 1996, including the opinions which those contributing expressed in their professional capacity.

The Commission, at the time of the first request by Bavarian Lager dated 4 May 1998, sought the agreement of the participants at the meeting of 11 October 1996 to the disclosure of their names. As the Commission indicated in the decision of 18 March 2003, that procedure was in compliance with the requirements of Directive 95/46, in force at that time.

Following a new request by Bavarian Lager to the Commission, dated 5 December 2003, seeking communication of the full minutes of the meeting of 11 October 1996, the Commission informed Bavarian Lager on 27 January 2004 that, having regard to the entry into force of Regulation 45/2001 and 1049/2001, it was henceforward obliged to treat that request under the specific regime of those regulations, particularly Art. 8(b) of Regulation 45/2001.

Whether under the former system of Directive 95/46 or under the system of Regulation 45/2001 and 1049/2001, the Commission was right to verify whether the data subjected had given their consent to the disclosure of personal data concerning them.

The Court of Justice found that, by releasing the expurgated version of the minutes of the meeting of 11 October 1996 with the names of five participants removed therefrom, the Commission did not infringe the provisions of Regulation 1049/2001 and sufficiently complied with its duty of openness.

By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Art. 8(b) of Regulation 45/2001.

As Bavarian Lager had not provided any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission had not been able to weigh up the various interests of the parties concerned. Nor was it able to verify whether there was any reason to assume that the data subjected” legitimate interests might be prejudiced, as required by Art. 8(b) of Regulation 45/2001.

It followed from the above that the Commission was right to reject the application for access to the full minutes of the meeting of 11 October 1996.

Therefore, the General Court erred in law in concluding that in this case the Commission had wrongly applied Art. 4(1)(b) of Regulation 1049/2001 and held that Bavarian Lager had not established either an express and legitimate purpose in obtaining, or any needed to obtain, the document at issue in its entirety.

As the contested decision did not infringe the provisions of Regulation 45/2001 and 1049/2001, the action for annulment by Bavarian Lager against that decision must therefore be dismissed.