ClientEarth wins again

ClientEarth has secured another important win in the European Court, this time in connection with access to environmental information.

Back in 2014 ClientEarth asked the European Commission to disclose (i) an impact assessment report for a proposed binding instrument setting a strategic framework for risk-based inspection and surveillance in relation to EU environmental legislation and an opinion of the Impact Assessment Board and (ii) a draft impact assessment report relating to access to justice in environmental matters at Member State level in the field of EU environmental policy and an opinion of the Impact Assessment Board.

ClientEarth relied in particular on Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.  Recitals 1, 2 and 6 of the Regulation explain that:

‘(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks 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.

(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.

...

(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity ..., while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.’

Article 1 of the Regulation states:

‘The purpose of this Regulation is:

(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission ... documents ... in such a way as to ensure the widest possible access to documents,

...’

Article 4 establishes ‘Exceptions’, with paragraph (3) providing that:

‘Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

The Commission refused to disclose the information, relying on Article 4(3), contending (inter alia) that those documents related to ongoing impact assessments carried out with a view to the adoption of legislative initiatives relating to inspections and surveillance in respect of environmental matters, on the one hand, and access to justice in such matters, on the other. The Commission contended that, in that regard, that impact assessments were intended to help it in preparing its legislative proposals and that the content of those assessments were used to support the policy choices made in such proposals. Therefore, according to the Commission, the disclosure, at that stage, of the documents at issue would seriously undermine its ongoing decision-making processes.

ClientEarth applied to the Grand Court, asking it to annul the Commission’s decisions.  The Court refused to do so, upholding the Commission’s decision to refuse disclosure.

In a judgement that repays careful reading the European Court has held that the Grand Court had misdirected itself in holding that the Commission was entitled to presume that, for as long as it had not made a decision regarding a potential proposal, disclosure of documents drawn up in the context of an impact assessment could, in principle, seriously undermine its ongoing decision-making process for developing such a proposal, regardless of the nature, legislative or otherwise, of the proposal envisaged and the fact that the documents concerned contained environmental.  Further, the Court held that the Commission was wrong to have refused to disclose the documents without undertaking a specific assessment in relation to each document, and had otherwise failed to provide an adequate justification for non-disclosure.

A copy of the Court’s judgement can be found here.