Case C-506/08 P, Sweden v. MyTravel

Court further interprets scope of Access to Documents Regulation

The Access to Documents Regulation (Regulation 1049/2001) confers on the public a wide right of access to documents of the institutions of the European Union.

It also provides for a system of exceptions authorising the institutions to refuse access to a document in cases where its disclosure would undermine, in particular, the decision-making process and the protection of legal opinions, unless there is an overriding public interest in disclosure.

In 1999, when MyTravel (then called Airtours), a UK tour operator, informed the Commission of a planned merger with its competitor First Choice in order to obtain a decision authorising that operation. Authorisation was refused on the ground that it was incompatible with the common market. Following the action brought by MyTravel, the Commission’s decision was annulled by the General Court in 2002 (Case T-342/99, Airtours v Commission).

The Commission then established a working group comprising officials of the Directorate-General for Competition (‘DG Competition’) and the legal service in order to consider whether it was appropriate to bring an appeal against that judgment and to assess the implications of that judgment for merger control procedures or in other areas. The report of the working group was presented to the Commissioner responsible for competition prior to the expiry of the period allowed for bringing an appeal against the judgment of the General Court.

MyTravel made a request to the Commission for access to the report, to the documents relating to its preparation and the documents contained in the file relating to the merger, on which the report was based.

By two separate decisions, the Commission refused to communicate those documents on the ground that, first, their disclosure would undermine, in particular, the decision-making process and the protection of legal opinions and, secondly, there was no overriding public interest in disclosure.

By judgment of 9 September 2008(Case T-403/05), the General Court dismissed the action by MyTravel against those decisions on the ground that the Commission was entitled to refuse access to the documents requested in so far as their communication could have undermined the protection of the decision-making process of the institution and the protection of legal advice. Subsequently, Sweden decided to apply to the Court of Justice to have that judgment of the General Court set aside.

By this appeal, the Kingdom of Sweden sought to have set aside this judgment of the Court of First Instance of the European Communities.  

The Court held that  Regulation No 1049/2001 was intended to give the fullest possible effect to the right of public access to documents of the institutions (Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008], on which I wrote this post), Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010]; on which I wrote this post). 

However, that right was none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provided that the institutions were to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision. The Court however held that  since they derogated from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (see, to that effect, Case C-266/05 P Sison v Council [2007], on which I wrote this post). and Case C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010]).

Thus, according to the Court, if the institution concerned decided to refuse access to a document which it had been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it was relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical.

The Court furthermore held that once the decision was adopted, the requirements for protecting the decision-making process were 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.

The Court of Justice found that the General Court should have required the Commission to indicate the specific reasons why that institution considered that closure of the administrative procedure did 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.

It followed that the General Court erred in law by holding that the Commission could, in such circumstances, refused access to the whole of the report.

The General Court had furthermore held that disclosure of the notes would risk communicating to the public information on the state of internal discussions between DG Competition and the legal service on the lawfulness of the assessment of the compatibility of the Airtours/First Choice concentration with the common market, which would, as such, risk affecting decisions which might fall to be made as regards the same parties or in the same sector.

Secondly, the General Court held that to accept that the notes in question should be disclosed would be liable to lead the legal service to display reticence and caution in the future in the drafting of such notes in order not to affect the Commission’s decision-making capacity in areas in which it was involved in its administrative capacity.

Thirdly, the General Court held that disclosure of those notes would risk putting the Commission in the difficult position in which its legal service might see itself required to defend a position before the Court which was not the same as the position which it had argued for internally in its role as adviser to the services responsible for the file, which it was its duty to perform during the administrative procedure.

The Court held that, first, 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 was precisely openness in this regard that contributed 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. The Court held

 “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. “

Concerning, next, the argument that the legal service would be liable to be led to display reticence and caution, the Court held that the General Court, without in any way verifying whether that argument was supported by concrete and detailed evidence, based its reasoning solely on general and abstract considerations.

Finally, 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, the Court noted that an argument of such a general nature could justify an exception to the transparency required by Regulation 1049/2001.