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.

Text of Judgment

Case C-309/10, Agrana Zucker

Surplus in restructuring fund not contrary to principle of conferral, nor unjust enrichment of European Union

This reference for a preliminary ruling concerned the interpretation and validity of Article 11 of Council Regulation 320/2006.
 

Regulation 320/2006 was adopted in order to bring the Community system of sugar production and trading into line with international requirements and to ensure its competitiveness in the future by launching a profound restructuring process of the sector leading to a significant reduction of unprofitable production capacity in the Community.

To that end, it established, by that regulation, a separate and autonomous temporary scheme for the restructuring of the sugar industry in the Community.  Within the framework of that temporary scheme, Regulation 320/2006 established  an economic incentive in the form of restructuring aid, intended for undertakings with the lowest productivity and designed to encourage them to give up their quota production. To that effect, Article 3 of that regulation provides for restructuring aid for four marketing years – the years 2006/2007 to 2009/2010 – with the aim of reducing production to the extent necessary to reach a balanced market situation in the Community.

In order to finance that restructuring aid  the Council set up a temporary restructuring fund and in particular decided that the financing for those measures would be ensured by raising temporary amounts from those sugar, isoglucose and inulin syrup producers which will eventually benefit from the restructuring process.
   

The referring court inter alia asked whether Article 11 of Regulation 320/2006 was contrary to the principle of conferral to the extent that it would permit the introduction of a general tax which was not limited to covering the financing expenditure for which the temporary amount was intended.

The Court held that it was necessary, in the light of the order for reference and the observations lodged before the Court, to examine the validity of that provision also in relation to the obligation to state reasons, the principle of proportionality and the alleged unjust enrichment of the European Union.

Agrana Zucker argued  that the levying of a tax which was used to finance measures which fall outside the common organisation of the markets in the sugar sector would vest that tax with the character of a general tax the imposition of which does not fall within the competence of the European Union.

The Court held that since it intended to contribute to the restructuring of the sugar industry in the Community, the raising of the temporary amount was a common agricultural policy measure lawfully adopted on the basis of Article 37 EC (see Case 265/87 Schräder HS Kraftfutter [1989], and Case C-8/89 Zardi [1990]).

According to the Court, the fact that a revenue surplus might arise on the expiry of such a temporary multiannual restructuring scheme, inter alia because producers had ultimately had less recourse than expected to the restructuring aid offered in return for the renunciation of production quotas, did not call into question the competence of the EU legislature to adopt that measure; nor did it divest the measure of its character as an agricultural measure.

The Court first of all argued that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see Joined Cases 15/76 and 16/76 France v Commission [1979]) and could not in particular depend on retrospective considerations relating to its efficacy (Case C-449/98 P IECC v Commission [2001])
.

Second, in so far as any surplus in the restructuring fund was assigned to the EAGF, of which that fund formed part, the surplus continued to be earmarked for financing common agricultural policy measures only.

It followed that Article 11 of Regulation No 320/2006 was not contrary to the principle of conferral.

Alleged unjust enrichment of the European Union

Agrana Zucker also submitted that the raising of the second instalment of the temporary amount for the marketing year 2008/2009 constituted unjust enrichment of the European Union and that the sugar producing undertakings are therefore justified in calling for the repayment of that second instalment, which was unlawfully levied.

The Court however held that a claim for restitution based on unjust enrichment of the European Union required, in order to succeed, proof of an enrichment on the part of the European Union for which there was no legal basis and of impoverishment on the part of the applicant which was linked to that enrichment (see, to that effect, Case C-47/07 P Masdar (UK) v Commission [2008]).

The Court held that Regulation No 320/2006 was valid in the light, specifically, of the principles of conferral and of proportionality and that the raising of the second instalment of the temporary amount for the 2008/2009 marketing year, notwithstanding the appearance of a surplus in the restructuring fund, was therefore not without valid legal foundation.

Consequently, the raising of that instalment did not constitute unjust enrichment of the European Union which might properly found a claim for restitution and, in any case, could not be relied upon for the purposes of assessing the validity of Article 11 of the regulation as the legal basis for raising that instalment.

 

Text of Judgment

Case C‑71/10, Office of Communications

Court further defines scope of public access to environmental information

This reference for a preliminary ruling concerned the interpretation of Article 4 of Directive 2003/4  on public access to environmental information 

At the request of the Department of Health, an independent investigation was conducted by experts into the risks connected with mobile phones. Their report, entitled ‘Mobile phones and Health’, identified as matters of public interest the location of base stations and the procedures for authorisation of those stations.

Subsequently, the United Kingdom Government set up a website called ‘Sitefinder’, which had been operated since the end of 2003 by the Office of Communications, in order to provide information on the location of mobile phone base stations in the United Kingdom. The site was constructed from information voluntarily provided by mobile phone operators from their databases. It made it possible for any individual to search a map square, by inputting a postcode, town or street name, for information about the base stations within it.

The Sitefinder website showed the approximate location in each square of each base station, but did not show either the precise location of the base station to within a metre; nor did it show whether the base station had been mounted at street level or concealed within or on top of a structure or building.

In 2005, an Information Manager for Health Protection Scotland, which was a branch of the National Health Service, asked the Office of Communications for the grid references for each base station.The Office of Communications refused the request, both initially and on review, relying on two grounds for refusal. First, the Office of Communications claimed that disclosure of that information would adversely affect public security within the meaning of Article 4(2)(b) of Directive 2003/4, as disclosure of the location of the sites would have included the location of the sites used to provide the police and emergency service radio network and could therefore be of use to criminals. Secondly, the Office of Communications relied on the adverse effect of disclosure of that information on the intellectual property rights of the mobile phone operators who had provided the information.

In subsequent proceedings, the Supreme Court of the United Kingdom asked the Court  whether a public authority, where it held environmental information or such information was held on its behalf, may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal listed in Article 4(2) of Directive 2003/4, or whether it must weigh the interests served by refusal to disclose, one at a time, against the public interests served by disclosure.

The Court first of all noted that the right to information meant that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The Court stressed that the grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure was weighed against the interest served by the refusal.

The Court argued that, according to the introductory wording in Article 4(2) of Directive 2003/4, ‘Member States may provide for’ exceptions to the general rule that information must be disclosed to the public. That provision did not specify any particular procedure for examining the grounds for refusal in cases where a Member State had had  provided for such exceptions on that basis.

The Court pointed out that Recital 1 to Directive 2003/4 set out the various reasons for disclosure; they included, in particular, ‘a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and … a better environment’.

The Court held that, therefore,the concept of ‘public interest served by disclosure’, referred to in the second sentence of the second subparagraph of Article 4(2) of that directive, must be regarded as an overarching concept covering more than one ground for the disclosure of environmental information.

The Court thus found that the second sentence of the second subparagraph of Article 4(2) was concerned with the weighing against each other of two overarching concepts, which meant that the competent public authority might, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose.

Case C‑310/10, Ministerul Justiţiei și Libertăţilor Cetăţenești

Court rejects invitation to extend its own jurisdiction

This reference for a preliminary ruling concerned the interpretation of Article 15 of Directive 2000/43, which implemented the principle of equal treatment between persons irrespective of racial or ethnic origin.

The Romanian Curtea de Apel Bacău asked the Court of Justice whether, once Article 15 of Directive 2000/43 and Article 17 of Directive 2000/78 had been implemented in national law, these provisions must be interpreted as precluding the possibility for the Romanian Curtea Constituțională of finding that that provision of national law could not give rise to the right, for persons who had been discriminated against as regards pay on the basis of socio-professional category or place of work, to compensation in the form of salary rights provided for by law for another socio-professional category. 

On the assumption that that was the case, the questions seek to ascertain, second, whether a national court was then required to disregard such a provision of national law or the constitutional case-law in question without being obliged to await the amendment of that provision by legislative means or a new interpretation of the provision by the constitutional court which were appropriate for ensuring its compliance with European Union law.

However, the Romanian Government and Ireland questioned whether the questions referred were admissible, in particular on the ground that the situation at issue in the main proceedings did not fall within the scope of Directives 2000/43 and 2000/78 or, more generally, of European Union law.

The Court of Justice stressed that under Article 267 TFEU, the Court of Justice had jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and of acts of the institutions of the European Union.

The Court reiterated that the procedure provided for in Article 267 TFEU was a means of cooperation between the Court of Justice and national courts.

It was therefore for the national courts alone which were seised of the case and were responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court.

The Court held that where questions submitted by national courts concerned the interpretation of a provision of European Union law, the Court was, in principle, obliged to give a ruling. (see, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990]; Case C‑28/95 Leur‑Bloem [1997]; and Case C‑409/06 Winner Wetten [2010]. 

Nevertheless, the Court pointed out that it had also stated that, in exceptional circumstances, it could examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction (see, inter alia, Case C‑13/05 Chacón Navas [2006]).  

The Court held that a reference by a national court could be rejected if, inter alia, it was obvious that European Union law cold not be applied, either directly or indirectly, to the circumstances of the case.  

Article 1 of Directive 2000/78 stated that the purpose of the directive was to lay down a general framework, as regards employment and occupation, for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation. The purpose of Directive 2000/43, as was apparent from Article 1 thereof, was to lay down a framework for combating discrimination on the grounds of racial or ethnic origin.

However, it was apparent from the order for reference that the discrimination at issue in the main proceedings was not based on any of the grounds thus listed in those directives, but operated instead on the basis of the socio-professional category, within the meaning of national legislation, to which the persons concerned belong, or their place of work.

The Court concluded that a situation such as that at issue in the main proceedings fell outside the general frameworks established by Directives 2000/43 and 2000/78 respectively for combating certain forms of discrimination. The Court held that  the questions referred by the Curtea de Apel Bacău, the purpose of which was not to ascertain whether a situation such as that at issue in the main proceedings fell within the scope of Article 15 of Directive 2000/43 or Article 17 of Directive 2000/78, but which were in fact based on the assumption that that was the case in order to seek an interpretation from the Court, even though those provisions of European Union law clearly could not be applied, either directly or indirectly, to the circumstances of the case, were inadmissible.

The Court held that the need to ensure uniform interpretation of the provisions of European Union law might  justify extending the Court’s jurisdiction in matters of interpretation to the content of such provisions, including in situations in which, because a rule of national law refered to such provisions, they were applicable indirectly to a given situation. The Court held, however, that such a consideration could not, without disregarding the divisions of powers between the European Union and its Member States, confer on that provision of European Union law primacy over higher‑ranking provisions of domestic law which would require that, in such a situation, the rule of national law or any interpretation of it must be disregarded.

Text of Judgment