On 13 September 2013 the General Court of the EU gave judgment in Case T-111/11 ClientEarth v Commission, now reported at  Env LR 11. The decision is notable (i) for the guidance which it provides in respect of the interpretation of Article 4(2) of Regulation (EC) 1049/2001 and (ii) for its discussion of whether Article 4(4)(c) of the Aarhus Convention is directly effective against EU institutions.
ClientEarth had submitted an application to the European Commission in 2010 for access to various documents pursuant to Regulation (EC) 1049/2001 (regarding public access to European Parliament, Council and Commission documents) and Regulation (EC) 1367/2006 (on the application of the provisions of the Aarhus Convention to Community institutions and bodies).
The documents to which access was sought included 63 studies (carried out by an external party on behalf of the Commission) on the conformity of the legislation of various Member States with EU environmental law. The Commission refused to grant ClientEarth full access to 41 of those studies. ClientEarth challenged that refusal on a number of grounds, all of which were rejected by the Court.
ClientEarth alleged that the refusal to grant full access infringed Article 4(2) of Regulation 1049/2001, by disregarding the limits of the third indent of that provision, which permits the EU institutions to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits (unless there is an overriding public interest in disclosure). The Court held that the studies were “targeted instruments designed to detect specific infringements of European Union law” (paragraph 49). The Commission was entitled to maintain the confidentiality of documents assembled in the course of an investigation relating to infringement proceedings where their disclosure might undermine the climate of trust which must exist, between the Commission and the Member State concerned, in order to achieve a mutually acceptable solution to any contraventions of EU law that might be identified (paragraph 60); in principle, therefore, it was entitled to rely on the exception set out in Article 4(2) of Regulation 1049/2001. Notably, the Court rejected (at paragraphs 76 and 77) ClientEarth’s argument that the general presumption (established in the State aid Case C-139/07 Commission v Technische Glaswerke Ilmenau  ECR I-5885) that disclosure of the Commission’s ‘administrative file’ would undermine the protection of the purpose of investigations was confined to the State aid context.
ClientEarth also contended that the refusal to grant full access infringed Article 4 of the Aarhus Convention because the exception to the right of access to documents provided by that provision in order to protect the purpose of investigations only encompassed investigations of a criminal or disciplinary nature. The Court rejected that argument on the ground that the provisions of the Aarhus Convention giving grounds for refusal of a request for access to environmental information were not “unconditional” and “sufficiently precise” so as to permit the Commission’s refusal to be examined against those provisions (paragraph 92). The Court held that:
“95. …Article 4(4)(c) is not sufficiently precise to be directly applicable, at least in relation to the institutions of regional economic integration referred to in Article 2(d) of the Aarhus Convention.
96. The Aarhus Convention, and in particular Article 4(4)(c) thereof, was manifestly designed to be applicable principally to the authorities of the States which are contracting parties thereto and uses concepts appropriate to them, as is apparent from the reference to the framework of national legislation in Article 4(1) thereof. On the other hand, the convention does not take into account the specific features which are characteristic of institutions of regional economic integration, which may nonetheless accede to the convention. In particular, there is nothing in Article 4(4)(c), or in the other provisions of the Aarhus Convention, which makes it possible to interpret the concepts used in that provision and to determine whether an investigation relating to infringement proceedings can be covered by such concepts.
97. In the absence of any specific information for that purpose, it cannot be held that the Aarhus Convention prevents the European Union legislature from providing for an exception to the principle of access to the documents of the institutions relating to the environment where those documents pertain to infringement proceedings, which form part to the constitutional mechanisms of European Union law, as established by the Treaties (Case T 59/09 Germany v Commission  ECR II 0000, paragraphs 63 and 64)”.
ClientEarth further alleged that the Commission’s refusal to grant full access had infringed Article 4(2) and (3) of Regulation 1049/2001 because the disclosure sought had been justified by an overriding public interest: EU citizens had a vested interest in knowing whether, and to what extent, EU environmental legislation was being complied with at national level so that, when necessary, they could insist upon compliance. The Court rejected that argument, holding that ClientEarth had not presented any argument capable of demonstrating that, in relation to the studies in question, the invocation of the principle of transparency raised any issue of particularly pressing concern. The “non-specific consideration” that citizens had a right to be informed of the extent to which the Member States were complying with EU environmental law did not suffice in that respect (paragraph 109).
The Court also rejected the argument that the Commission had infringed Article 8 of Regulation 1049/2001 and Article 4 of the Aarhus Convention by extending the time-limit for replying to ClientEarth’s application (paragraph 120). Finally, the Court dismissed the allegation that the Commission had infringed the obligation actively to disseminate information contained in Article 4 of Regulation 1367/2006 and Article 5 of the Aarhus Convention.