Statewatch Analysis The European Commission Proposals To Amend The ...
Statewatch analysis
The European Commission proposals to amend the Regulation
on access to EU documents (1049/2001)
Tony Bunyan, Statewatch editor, comments:
“The scope of the Commission’s amendments and its consultation do not
consider many of the fundamental questions posed by civil society and the
European Parliament.
Perhaps the most crucial is the public’s right to know what is being
discussed before it is adopted in Brussels – a practice that would never be
tolerated at national level.
Two of the Commission amendments are highly retrogressive – the new
definition of a document which would exclude most documents and mean
they would not have to be listed in public registers and the obligation of
institutions to give public access to the full text of documents would be
limited to legislative measures – and not cover the hundreds of thousands
of other documents produced and received.
The Amsterdam Treaty was agreed 11 years ago (1997) and was meant to
herald a new era of openness and transparency – we got half a loaf and are
still waiting for the other half.”
The European Commission is due to adopt (Wednesday) a proposal to amend
Regulation 1049/2001) on access to EU documents.
It claims legitimation for its proposed amendments from a report produced
by the European Parliament in September 2006, a public consultation
process conducted by the Commission in 2007, and recent case law.
Many problems raised by civil society and the European Parliament have not
even been considered.
There are a number of retrogressive proposals including:
- the definition of a “document” would mean that the majority of
“documents” would not be defined as “documents” and would remove the
obligation to list all documents in the public registers
- The amendment concerning Article 12: the right of public access to the
full-text of documents which currently covers all documents is restricted to
legislative ones only.
- member states’ vetoes over access to documents: the Commission’s
proposal would lower standards as compared to the current rules.
- new complete exclusions from the scope of the Regulation in Article 4 – it
is doubtful whether the complete exclusion of any category of documents
would be legally valid - and a new ground for exception (grounds for refusal
of access) covering staff proceedings.
- the period for responding to confirmatory applications (appeals against
refusal) is increased from 15 to 30 days
European Parliament
The Commission says it took up five suggestions by the European Parliament
(EP).
1. Article 255
The EP asked that Article 255 of the EC Treaty should be referred to and it
is proposed that Article 1 contain a reference to this.
2. Full legislative transparency
The EP has called for:
“All preparatory documents to legal acts should be directly accessible to
the public”
The Commission says:
“This recommendation is fully accepted and addressed in Article 12”
Here the Commission is economical with the truth. True the EP, quite
rightly, says all legislative preparatory documents should be directly
accessible. However, the effect of the Commission’s proposed amendment
makes no guarantee that preparatory documents will be directly accessible
before a measure is adopted.
In fact the Commission uses the EP’s argument to propose a massive
backward step.
Current Article 12:
“Direct access in electronic form or through a register
1. The institutions shall as far as possible make
documents directly accessible to the public in electronic
form or through a register in accordance with the rules
of the institution concerned.
2. In particular, legislative documents, that is to say,
documents drawn up or received in the course of
procedures for the adoption of acts which are legally
binding in or for the Member States, should, subject to
Articles 4 and 9, be made directly accessible.
3. Where possible, other documents, notably documents
relating to the development of policy or strategy, should
be made directly accessible.
4. Where direct access is not given through the register,
the register shall as far as possible indicate where the
document is located.”
The proposed amended Article 12
1. Documents drawn up or received in the course of
procedures for the adoption of EU legislative acts or
non-legislative acts of general application shall, subject
to Articles 4 and 9, be made directly accessible to the
public.
2. Where possible, other documents, notably documents
relating to the development of policy or strategy, should
be made directly accessible in electronic form.
3. Where direct access is not given through the register,
the register shall as far as possible indicate where the
document is located.
4. Each institution shall define in its rules of procedure
which other categories of documents are directly
accessible to the public.'
Apart from the changes to the definition of a “document” this is the
most sweeping change proposed by the Commission.
1. The current Article 12.1. covers ALL documents – whether legislative and
non-legislative acts of general application such as Commission Decisions or
not. This is directly linked to Article 11 which says all documents produced
and received should be listed on the public register without delay and
Article 12.1 says that in principle all of these documents should be – “as far
as possible” – directly accessible to the public in electronic form.
The proposed amendment by the Commission REMOVES THIS PRINCIPLE! So
hundreds of thousands of other documents would “exist” – produced and
received: evaluations, studies, reports, comments, records of meetings etc –
but there would be no right of public access to them whatsoever as the
Regulation would not apply to them.
The amendment LIMITS the commitment to give direct access to legislative
(and non-legislative) “acts” – and this would be greatly limited by applying
the exceptions in Articles 4 and 9.
To compound matters there is another major change in the new Article 12.4
whereby each institution can decide for itself “which other categories of
documents are directly accessible to the public.”
This is an utterly outrageous proposal.
3. Confidentiality, Member States documents and Registers
The three other matters the Commission says were raised by the EP are:
The EP wants rules on classified documents to be changed - “to ensure
parliamentary control” – the Commission fails to respond to this.
The EP also raised Member States’ vetoes on requests for access to their
documents when placed in EU decision-making (see below under Case law).
Finally, the EP wants “a single access point to preparatory legislation”, a
common interface to the institution’s registers and common archiving rules.
The Commission welcomes this recommendation but proposes no changes to
the Regulation.
Public consultation
1. Active dissemination
A large number of respondents wanted the institutions’ registers to be
easier to access and more “harmonised”.
Extraordinarily the Commission states that Article 11 (on the obligation to
set up public registers listing all documents produced) allows for this so no
change is needed.
The failure of the European Commission to maintain a full and proper public
register of documents under Article 11 is the subject of a complaint by
Statewatch to the European Ombudsman:
http://www.statewatch.org/news/2007/apr/statewatch-ombuds-cases-april-2007.pdf
2. Aligning the Regulation with the Aarhus Convention.
The Commission says that the majority of respondents backed this realigning
except “environmental NGOs and .. the chemical and biotechnological
sectors”
It thus proposes a new Article 4.1.e – a mandatory exclusion:
“the environment, in particular breeding sites of rare species”
Plus a new Article 4.2 (and the application of the amended 5.2, see below)
New Article 4.2 (exceptions allowing refusal of access)
“The institutions shall refuse access to a document where disclosure would
undermine the protection of:
(a) commercial interests of a natural or legal person; this ground for
refusal does not apply to information on emissions which is relevant for
the protection of the environment;”
3. The protection of commercial interests
The Commission concludes:
“The general feeling is that the current rules strike the right balance.
Journalists, NGOs and a majority of citizens claim that more weight should
be given to the interest in disclosure.
Therefore, the Commission does not propose to amend this provision.”
In other words, government and big business did not want any changes, just
the rest of us.
However, the new exclusion from the scope of the Regulation in Article 2.6
(documents relating to court proceedings) would be of considerable
relevance here – as could the redefinition of a “document” and the
amendment to Article 12.1 (public access to full-text of documents)
The new exception relating to investigations could be relevant as well
regarding commercial interests. See below on a pending appeal by the
Commission - this makes clear that the Commission is trying to use the
opportunity of amending the Regulation in order to win its appeal against a
judgment of the Court of First Instance!
4. “Excessive requests”
A long-standing desire of the Commission is to limit access to people asking
for too many documents but this notion was not backed in the consultation.
The Commission is proposing a “clarification” where documents cannot be
easily identified in Art 6.2:
Existing Article 6.2:
“If an application is not sufficiently precise, the institution shall ask the
applicant to clarify the application and shall assist the applicant in doing
so, for example, by providing information on the use of the public registers
of documents.”
Proposed “clarification” amendment:
6.2. If an application is not sufficiently precise or if the
requested documents cannot be easily identified, the
institution shall ask the applicant to clarify the application
and shall assist the applicant in doing so, for example, by
providing information on the use of the public registers of
documents.'
The Commission thus only proposes a clarification, which is
unobjectionable, but the two new exclusions from the scope of the
Regulation would allow the Commission to refuse access to a considerable
number of documents without having to give reasons or consider the public
interest, etc.
Moreover, the new Art .2(5) and 2(6) would deal with this by removing large
numbers of documents from the scope of the Regulation - thereby relieving
the Commission of the obligation to examine them at all - these are often
cases concerning large numbers of documents (the new 'investigations'
exception is in particular relevant here - cf the VKI judgment).
There are two other changes to the processing of requests:
a) in Article 8.1: The time limit for a response to confirmatory applications
of 15 days becomes 30 days;
b) There is a new Article 10.5 which includes:
“the payment of a fee or a consultation without the right to take copies”
This could be interpreted to permit the imposition of additional fees.
5. The concept of a “document”
In the Commission’s consultation the great majority of responses favoured
leaving the definition of a “Document” unchanged and this is acknowledged
by the Commission.
The Explanatory Memorandum says:
"The wide definition of the concept of "document" in Article 3(a) is
maintained.”
And then goes on to propose a fundamental change without any explanation
whatsoever except to claim:
“However, a "document" only exists if it has been transmitted to its
recipients or circulated within the institution or has been otherwise
registered."
Where does this come from? It is certainly not what the current Art 3.a
(which is to be “maintained”) says.
a) The current Art 3.a. in Regulation 1049/2001) says:
“document" shall mean any content whatever its medium (written on
paper or stored in electronic form or as a sound, visual or audiovisual
recording) concerning a matter relating to the policies, activities and
decisions falling within the institution's sphere of responsibility;”
b) The earlier version put online said:
""document" shall mean any content whatever its medium (written on
paper or stored in electronic form or as a sound, visual or audiovisual
recording) drafted or received by an institution and transmitted to one
or more recipients or circulated within the institution or otherwise
recorded;"
c). The adopted version says:
"drawn-up by an institution and formally transmitted to one or more
recipients or otherwise registered, or received by an institution"
This is a major change:
- gone is the term "circulated" - the category into which most Commission
document fall
- and "transmitted" is changed to "FORMALLY transmitted" - which may
only cover the final versions of COM and SEC documents.
d). The Explanatory Memorandum now says:
"The wide definition of the concept of "document" in Article 3(a) is
maintained. However, a "document" only exists if it has been transmitted to
its recipients or circulated within the institution or has been otherwise
registered."
The previous EM said:
"The wide definition of the concept of "document" in Article 3(a) is
maintained. However, a "document" only exists if it has been sent to
recipients or circulated within the institution AND has been entered in the
institutions' records."
- to say that "The wide definition of the concept of a "document" is
maintained" from the current Regulation - when it is clearly being severely
restricted is nonsense.
- the word AND has been changed to "OR" regarding "otherwise recorded"
- what does "otherwise recorded" mean? What categories of documents does
this cover? This concept utterly lacks precision.
- there is also confusion in the Commission's proposal because the new EM
still includes "or circulated..." but the this is deleted in the text
- clearly if a document is not "FORMALLY TRANSMITTED" or "otherwise
recorded" then it is not a document - when clearly it is.
e) The further ramification of this change is enormous:
- the commitment - as now - in the renumbered Article 2.2 is that:
"This Regulation shall apply to ALL documents etc...."
is now qualified/restricted/limited to/by the new definition of a document
above !!
- this also effects Article 11 on public registers of documents which still
says:
"References to documents shall be recorded in the register without delay"
but the new definition of a "document" means that only a fraction of the
documents produced and received will have to be put on the register
under Article 11.
The definition of a document should remain unchanged by deleting:
"drawn-up by an institution and formally transmitted to one or more
recipients or otherwise registered, or received by an institution"
7. Scope
In the current Regulation a clear distinction is made between making a
document “accessible”, simply to list the existence of a document and
“directly accessible” which means that the full-text can be downloaded.
Article 2.3 (directly relevant to Article 11 and 12) makes a distinction
between:
“legislative documents which shall be made directly accessible in
accordance with Article 12 [“Direct access to documents”; emphasis added]
and the great multitude of other documents which will be “accessible”
(note: not “directly” accessible) either:
“following a written application”
which of course can require action by the applicant and can be refused.
or:
“directly in electronic form”
that is if it is made available when the institution chooses, or
“through a register”
this is simply listing the documents on “a” register (note: this could means
one of several registers, signalling the Commission’s continued resistance to
providing a single public register of documents).
Second, most of those consulted want the scope of the Regulation to cover
all EU institutions, bodies and agencies. The Commission says that this will
only be possible under the new Lisbon Treaty.
Even pending or without the entry into force of the Lisbon Treaty, it would
be open to the Commission, Council and EP to a) do what they did in 2001 –
ie to agree to implement these changes as regards the access to documents
rules of entities created by legislation; and b) to call upon all other EU
entities to act consistently with the Regulation, as now amended – including
those which have no access rules (ie the EU Courts and the European
Council).
Recent case-law
1. Access to personal data
The Court of First Instance ruled in the Bavarian Lager case (8.11.07) that
the personal data of officials involved in the institutions’ activities can be
released providing disclosure would not adversely affect the persons
concerned.
A new Article 4.4 is inserted in the Regulation saying:
“4. Personal data shall be disclosed in accordance
with the conditions regarding lawful processing of such
data laid down in EU legislation on the protection of
individuals with regard to the processing of personal
data. Disclosure of names, titles and functions of public
office holders, civil servants and interest representatives
in relation with their professional activities is deemed to
be lawful under the data protection legislation unless,
given the particular circumstances, disclosure would
adversely affect the persons concerned.”
The new Article 4(4) would not enshrine the Bavarian Lager judgment of the
Court of First Instance, but rather would widen the grounds for refusal as
compared to that judgment. The judgment states that personal data must
be disclosed under the access to documents rules unless public disclosure of
personal data ‘is capable of actually and specifically undermining the
privacy and integrity of the persons concerned’ (para. 120 of the judgment).
Then the judgment applied this principle to the facts, and stated that
disclosing the identity of lobbyists who participated in a meeting lobbying
the Commission ‘is not capable of actually and specifically undermining the
privacy and integrity of the persons concerned’ (para. 126). There is no
mention whatsoever in the judgment of a further test of whether disclosure
of the information would “adversely affect” those persons, or any other
further test.
Therefore the Commission’s proposal would lower standards as compared
to the current rules.
Two further points on Article 4:
First, the distinction made between court proceedings and legal advice
presupposes the failure of the Turco appeal on this issue – which the Court
of Justice has not yet decided.
Second, the exception for staff proceedings is new. There is no convincing
explanation why the access rules would undermine staff proceedings, given
that staff can rely on the data protection rules to protect their interests –
the new exception would arguably therefore only protect the institutions’
interests to avoid public disclosure of issues relating to hiring (such as
alleged cronyism) and to reduce staff members’ ability to use the access
rules to find out information relating to their case. The Commission does
not suggest that the issue arose in the public consultation or from the case
law.
2. Access to documents originating from a Member State
It is proposed that the current Article 4.5 is replaced by a new Article 5.2:
“A Member State may request the institution not to disclose a document
originating from that Member State without its prior agreement.” (Art 4.5)
“Where an application concerns a document originating from a Member
State, as defined in Article 3(3), the authorities of that Member State will
be consulted, unless the document is already lawfully in the public domain.
The institution holding the document will disclose it unless the Member
State gives reasons for withholding it, based on exceptions laid down in
Article 4 of this Regulation or on specific provisions in its own legislation
preventing disclosure of the document concerned.” (new Art 5.2)
This does introduce an obligation for the institution to disclose a document
from a Member State. However, this is limited by the Member State being
able to invoke any of the exceptions in Article 4, for example, Article 4.3
where access can be refused where a proposal is under discussion (one of
the largest categories for refusal of access by the Council and the
Commission).
Member State documents concerning the legislative process should be
public.
The revised 3.c which would exclude some documents entirely from the
concept of Member States’ documents – ie documents relating to the
adoption of legal acts – this is a positive amendment.
Indeed it could go further, to exclude also documents relating to the
national implementation of EU law from the concept of Member States’
documents (a point made by the EP).
However, the revised Article 5(2) (ex-4(5)) is problematic as compared to
the case law because it would allow Member States to insist on non-release
of the document not only in accordance with Article 4 – which is entirely
consistent with the case law, because Article 4 would apply anyway if the
institutions instead had the sole power to decide on refusal – but also on
grounds of their national legislation. In fact this overturns the case law and
takes us back more or less to the prior position as the Commission and
Council (wrongly) understood it, where Member States could veto for their
own reasons the release of their documents.
Therefore the Commission’s proposal would lower standards as compared
to the current rules.
3. Examining requests which are “manifestly unfounded”
This is a specific ruling by the Court concerning documents to be submitted
as part of the court’s proceedings prior to an oral hearing. New provisions in
Article 2.5 and 2.6:
“5. Documents submitted to Courts in the course of
judicial proceedings are not accessible to the public
before a public hearing has taken place. Access can
only be granted to the Institutions' own submissions.
6. Without prejudice to specific rights of access for
interested parties established by EU law, documents
forming part of the file of law enforcement proceedings
leading to an administrative act of individual scope are
not accessible to the public until such act has become
definitive. Information obtained from undertakings in
the framework of such proceedings is not accessible to
the public.”
The exception in Article 2(6) goes well beyond the case law. The VKI case
does say, at para. 75 of the judgment, that the Commission need not give
full reasons for a refusal for each individual document when it is manifestly
clear that access to the documents must be refused, due to the particular
circumstances of the request (the point made in the explanatory
memorandum). But the wording of Article 2(6) is broader: the judgment
clearly does not go so far as to say that documents forming part of the files
of law enforcement proceedings leading to an administrative act of
individual scope must always be refused. Quite obviously, the scope of the
Regulation is a different question from the extent of the requirement to
give reasons. Moreover, applying these principles to the facts of the VKI
case, the Court said that “the Commission was not entitled to reach such a
general conclusion” that documents relating to a pending competition
proceeding had to be refused ‘without first having carried out a concrete,
individual examination’ of the relevant documents (para. 82 of the
judgment). This was because the Commission had not made certain that the
documents in question fell within the relevant categories (para. 83):
“[t]he Commission seems to have acted more on the basis of what it
imagined the content of the documents in the…file to be than on the basis
of an actual examination”
and the Commission’s arguments:
“remain vague and general….[t]he fears expressed by the Commission
remain mere assertions and are, consequently, utterly hypothetical.’ (para.
84). ‘Finally, and in any event, it is not apparent from the reasons given for
the contested decision that each of the documents comprising the file,
taken individually, is covered in its entirety’ by the exception relating to
the protection of investigations.
The Court went on to rule that the Commission had also not given sufficient
reasons to justify refusal of access on the three other grounds relied upon
by the Commission, and it also refused to accept that the Commission could
rely upon the administrative workload resulting from the applicant’s request
to refuse access. This last point confirms the link between the proposed
new Article 2(6) and the Commission’s attempt to reduce its workload
surreptitiously without directly amending the rules on so-called ‘excessive
requests’.
Furthermore, it is clear that the new Article 2(6) is an attempt by the
Commission to overturn a judgment of the Court of First Instance on the
specific issue of public access to the Commission's investigative files. This
can be seen from the arguments set out by the Commission in its appeal to
the Court of Justice (see the Annex to this analysis).
To conclude, the proposed new Article 2(6) of the Regulation has nothing
to do whatsoever with the judgment in VKI – except to the extent that
the Commission is apparently seeking to overturn the consequences of
that judgment and is indisputably seeking to overturn a later judgment of
the Court of First Instance on a similar issue].
Moreover, the final sentence of the new Article 2(6), that “information
obtained from…undertakings in the framework of such proceedings is not
accessible to the public”, would apply even after a decision is taken, as
confirmed by the explanatory memorandum. This would be a further
absolute exclusion from access, not limited in time, and not subject to the
possible public-interest override as regards the commercial interests of
companies, as it is at present.
As for the exception in Article 2.5, it is wider than the judgment of the
Court of First Instance in the API case, which only applies to documents
drawn up for the purpose of court proceedings (para. 61 of the judgment,
reaffirming long-standing case law). Furthermore, the Court judgment does
not suggest that after the public hearing, the institutions would only be able
to grant access to their own documents, as the proposed Article 2(5) states.
As for the question of releasing documents before a hearing date, on this
point the API judgment is on appeal (three appeals in fact) to the Court of
Justice – so enshrining the exception in that case as a complete exclusion
from the Regulation is jumping the gun.
Anyway, providing for complete exclusions from the Regulation on these
grounds circumvents the possibility that in some cases there might be an
overriding public interest in release.
Far from reflecting the existing case law, the Commission is seeking to
overturn several key judgments of the EU courts which enlarged public
access to documents, and to ensure the results of two pending appeals
before the Court of Justice without waiting for the Court's decisions.
STATEWATCH together with other NGOs have called for:
1. The need to abolish the absolute power of Member States to 'veto' the
documents which they have 'authored';
2. The need to abolish the power of non-EU states (“third parties”) to veto
access in practice, especially the USA;
3. The need to restore some meaning to the “public interest” override over
the ability of the EU institutions to refuse access to documents, because the
case law of the EU's Court of First Instance has effectively wiped out the
prospect of using the override; no appeal for disclosure on the basis of the
“public interest” of the public to know has ever been successful.
4. The need to re-examine and limit the exceptions to the right of access
under the Regulation, in particular the exceptions for decision-making by
the EU institutions – establishing the “right to know” was is being discussed
before it is decided in Brussels.
5. The need to extend access to documents in practice by clarifying and
reinforcing the obligation of the EU institutions to establish full registers of
documents and to make as many documents as possible directly accessible
via the registers.
6. A need to clarify the status, and regular review, of “Restricted”
documents.
7. Documents produced by the Legal Services, where they do not concern a
court case, should be public.
The European Parliament report (2006)
In addition, or complementary to, the issues referred to by the Commission:
1. There should be clear rules on access to administrative documents, eg for
the implementation of legislative acts.
2. The classification of documents “Confidential” or above should be
regularly reviewed
3. Unlike the Commission proposal above the EP says that all preparatory
documents should be accessible:
“as soon as those documents are formally submitted by each institution
taking part in the decision”
This public access should extend to “complementary information or
documents” and the “contributions submitted by the secretariats of the
institutions (including the legal service).”
4. There should be a distinction between access to documents concerning
on-going operations – which are understandably secret – and “the
requirements of accountability and a posteriori control.
5. Documents concerned with bilateral agreements with third countries
should be accessible to the EP.
6. Give full access to information submitted by Member States to the
Commission when drafting or implementing legislation.
Tony Bunyan, with additional comments by Steve Peers, 20 May 2008
(Version 3)
ANNEX
Appeal brought on 8 March 2007 by Commission of the European
Communities against the judgment delivered by the Court of First
Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02
Technische Glaswerke Ilmenau GmbH v Commission of the European
Communities
(Case C-139/07P)
Language of the case: German
Parties
Appellant: Commission of the European Communities (represented by V.
Kreuschitz and P. Aalto, acting as Agents) Other parties to the proceedings:
Technische Glaswerke Ilmenau GmbH, Schott Glas, Kingdom of Sweden and
Republic of Finland
Form of order sought
set aside the judgment of the Court of First Instance of 14 December 2006 1
in Case T-237/02 Technische Glaswerke Ilmenau v Commission which annuls
the decision of the Commission of 28 May 2002 in so far as it refuses access
to documents relating to the investigation procedures in respect of aid
granted to Technische Glaswerke Ilmenau GmbH, and order Technische
Glaswerke Ilmenau GmbH to pay the costs.
Pleas in law and main arguments
The Commission of the European Communities request the Court to set aside
the judgment of the Court of First Instance of 14 December 2006 in Case T-
237/02, which annuls the decision of the Commission of 28 May 2002 in so
far as it refuses access to documents relating to the investigation of aid
granted to Technische Glaswerke Ilmenau GmbH.
According to the settled case-law of the Court of First Instance and the
Court of Justice, the parties, and accordingly the recipient of aid, have no
right of access to documents in cases of investigation of aid. It follows that
the decision of the Court of First Instance erred in law in paragraphs 87 to
89 of the judgment under appeal by stating that there were no special
circumstances making it manifestly clear that the access to documents
requested should be refused. In fact, it is clear from the case-law that the
documents concerned are fully covered by an exception to the right of
access to documents and accordingly that each document should not be
individually examined.
Furthermore, cases of investigation of aid are proceedings against the State
granting the aid, particularly where the recipient of the aid has no
entitlement to aid. Accordingly, what is relevant to the question of access
to documents is what the Court of Justice itself has ruled in relation to
actions for infringement under Article 226 EC, namely that there is no public
no right of access to documents in such proceedings.
The judgment under appeal also leads to the absurd result that the general
public enjoys, on the basis of the legislation promoting transparency,
namely Regulation No 1049/2001, 2 more extensive rights of access to
documents than a recipient of aid who is directly subject to proceedings
against him, who is also - precisely because he is directly and individually
concerned for the purposes of Article 230(4) EC - entitled to raise
proceedings against the decision ending the procedure. It is even harder to
understand why the further consequence, namely that an application of a
recipient of aid under reference to the applicable case-law may be rejected
where such a response cannot be given to an application of a recipient of
aid or an independent third party who relies on the transparency regulation.
With the third ground of appeal, the Commission criticises the judgment
under appeal for giving the same expression, namely the word 'document', in
the singular, in Article 4(2) of Regulation No 1049/2001 and in Article 6 of
the regulation is given a different meaning. While, in Article 4(2), that word
means that each document must be considered for a refusal to be given, the
Court of First Instance interpreted Article 6 in such a way that access may
also be requested to a bundle of documents that has been designated as an
administrative file.
With the fourth ground of appeal, the Commission claims that the Court of
First Instance infringed Article 255 EC, inasmuch as its decision was not
arrived at on the basis of the language of the legislation, but on the basis of
assumptions reached without reference to that wording.
Lastly, the Commission claims that the Court of First Instance wrongly held
that both the procedures relating to the investigation of the aid granted to
Technische Glaswerke Ilmenau GmbH had already been completed at the
time of the decision concerning access to the administrative file, so that the
authorities had no interest in maintaining the confidentiality of the
documents. That is partly incorrect because of the proceedings pending
before the Court of First Instance. The Court of First Instance also appears
to have wrongly concluded that Regulation No 1049/2001 made the earlier
case-law and the relevant procedural provisions relating to the monitoring
of aid obsolete.
BACKGROUND NOTE
1. To keep up to date with the legislative process considering the
Commission’s proposals – News, analyses and documentation please
bookmark: Statewatch’s Observatory: FOI in the EU: Statewatch: Observatory
on access to EU documents: 2008-2009:
http://www.statewatch.org/foi/observatory-access-reg-2008-2009.htm
2.Statewatch has been working on access to EU documents since 1991. It has
lodged with the European Ombudsman eight successful complaints against
the Council of the European Union (the governments) and two, more
recently, against the European Commission – the first of which it won and
second decision is due soon. Each of these complaints increased the rights
of all to access to EU documents.
In 2001 European Voice newspaper: Tony Bunyan, Statewatch editor, was
selected by a distinguished panel as one of the "EV50", one of the fifty most
influential people in the European Union over the year for Statewatch's work
on access to documents in the EU
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