The judgment by the Court of Justice of the European Union of 13 July 2017 deals with the Commission’s refusal to provide Saint-Gobain with certain emission trading documents. Saint-Gobain is a company involved in the world glass market. It operates installations coming within the scope of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32). On the basis of Decision 2011/278, Saint-Gobain applied to the competent German authorities for the free allocation of emission allowances for the third period provided for under the emission allowances trading scheme established by that directive, i.e. for the period between 2013 and 2020. In that connection, Saint-Gobain had requested access to the Excel table, communicated by Germany to the Commission, containing information relating to certain installations of Saint Gobain situated on German territory.
The Commission refused Saint-Gobain’s request (first in its entirely and later partly) in connection with the protection of a current decision-making process (Article 4(3) of Regulation No. 1049/2001). In the first instance, the General Court of the European Union upheld the Commission’s decision. The Court of Justice then ruled on that judgment and on the ruling on appeal.
In its assessment of this case, the Court of Justice pointed out in advance that Regulation No. 1049/2001, in accordance with recital 1 thereof, responds to the wish – expressed in the second subparagraph of Article 1 of the EU Treaty, inserted by the Treaty of Amsterdam – to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As recital 2 of the preamble to Regulation No. 1049/2001 notes, the right of public access to documents of the institutions is interwoven with the democratic nature of those institutions (Judgment of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, EU:C:2008:374, point 34).
This right of access is subject to restrictions based on the public or private interest. Given that such exceptions deviate from the principle of the widest possible public access to documents, they must be interpreted and applied restrictively. In particular, it follows from the second sentence of Article 6(1) of Regulation No. 1367/2006 that as regards in particular the exception provided for in the first sentence of Article 4(3) of Regulation No. 1049/2001, the ground for refusal must be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment (see in that sense the judgment of 14 November 2013, LPN and Finland v Commission, C-514/11 P and C-605/11 P, EU: C: 2013: 738, point 83).
In this context, the General Court that upheld the Commission’s refusal considered that the decision-making process was an administrative procedure aimed at a harmonised allocation of free emission allowances and that, on the date the contested decision was adopted, that administrative procedure had not yet been closed. Allowing the request would lead to an increased risk of influence being exerted selectively, which may adversely affect the quality of the final decision and that compliance with the time limit would be compromised if the Commission had to examine and respond to reactions to internal discussions during that procedure. To summarise, the General Court considered that in using the expression “which relates to a matter” the legislature did not intend to restrict the scope of the information covered by the exception laid down in the first subparagraph of Article 4(3) of Regulation No. 1049/2001 solely to documents drawn up as part of the decision-making process in question and that the use of that expression also allows for the application of that provision to documents directly relating to the matters dealt with in that process.
The Court of Justice found differently, however. Firstly, it found that the General Court had confused the concepts of “decision-making process” and “administrative procedure”, which had the effect of expanding the scope of the exception to the right of access provided for by that provision to the point where it allows a European Union institution to refuse access to any document. The Court of Justice then refers to what was observed by the Advocate General, namely that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure on the basis of which those authorities act. The strict interpretation is repeated and the Court of Justice finds that the mere reference to a risk of negative repercussions linked to access to internal documents and the possibility that interested parties may influence the procedure do not suffice to prove that disclosure of those documents would seriously undermine the decision-making process of the institution concerned. The Court of Justice emphasises that there is a need to provide effective opportunities for public participation in environmental decision-making, thereby increasing the accountability and transparency of the decision-making but that that regulation does not require – contrary to what the General Court held in paragraph 81 of the judgment under appeal – that the Commission is required to examine or respond to public reactions following the disclosure of documents containing environmental information relating to an administrative procedure in progress and divulging internal discussions. In those circumstances, it cannot therefore be held that such disclosure jeopardises compliance with time limits in administrative procedures conducted by the Commission. The judgment by the General Court is set aside and the Commission’s decision is annulled.
In my opinion, we need to view this judgment more broadly than merely as a view of the public nature of environmental information. There is consensus in Europe that decisions must be taken as openly as possible and as closely as possible to the citizen. Accountability and transparency of decision-making are paramount. This demands a view of government action that is in line with the general view of this issue in the European Code of Good Administrative Behaviour: “Civil servants should be willing to explain their activities and to give reasons for their actions. They should keep proper records and welcome public scrutiny of their conduct, including their compliance with these public service principles.” They should act less on the basis of fear, therefore, and more on the basis of participation and respect for everyone’s legitimate role in a decision-making process. This will enhance confidence in the authorities, which exist – after all – for all of us.