ECJ ruling on the relations between EC and MS in applying access to information laws

Krzysztof Izdebski
May 10, 2017 · 5 min read

It is probably the best news for freedom of information community in recent months. The judgment of the General Court (ECJ) from 28 April 2017 clarifies the ambiguity of being trapped between EU and Member States rules on access to information concerning the activities of the European Commission and the Member State laws.

The Polish company, using the Act on The Access to Public Information, filed a request with the Polish Ministry of Foreign Affairs (‘the MFA’) for access to documents relating to procedures conducted by the European Commission concerning the infringement of EU law by the Polish law of 19 November 2009 on gaming. What is important for the case is that the applicant requested access to copies of the letters sent by the Commission to the Republic of Poland in connection with those procedures but the company also requested access to copies, in the MFA’s possession, of the letters sent by the Republic of Poland to the Commission concerning those procedures (‘the documents at issue’).

The MFA, on the grounds of article 5 of Regulation 1049/2001 has transferred the request to the Commission which later issued the decision restricting access to documents.

“Documents in the Member States Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation. The Member State may instead refer the request to the institution.”

The Court agrees with the company that it is unlawful to issue the decision by the Commission when documents (even though concerning the EU — Member State relations) are originating from Member States.

We have a privilege to present you a commentary on the case written for us by Piotr Hoffman, lawyer representing the company in the case before the General Court:

“The judgment directly concerns the forwarding of requests for access to documents filed with national authorities to EU institutions. More generally, it concerns the applicability of EU rules to requests for access filed with the national authorities.

The background here is that the Polish regime of granting access to information is in some respects more liberal than the EU regime of regulation 1049/2001. The Polish authorities thus face the question of how to handle a request for access to documents which have some connection to EU law, where the request, had it been filed with, e.g., the Commission, would have been rejected, but under Polish law should in principle be granted. The solution has up to now usually been:

- either to forward such a request to the Commission pursuant to art. 5 of the regulation,

- or to reject the request by directly applying art. 4(1–3) of the regulation.

The judgment directly concerns the former practice. The General Court clearly states that a request may be forwarded only if the document indeed originated from the Commission. For example, a copy of a Member State’s reply to a reasoned opinion issued by the Commission in the framework of infringement proceedings does not fall into this category, and a request for access to it cannot be forwarded to the Commission; the Court thus rejected the Polish government’s position according to which, since such a reply includes information or excerpts from the Commission’s opinion, it must be treated as a document originating from the Commission. The Court further stated that forwarding a request for access is ineffective in such a case, and so the Commission lacks competence to issue a decision concerning it. The request must thus be handled by the national authorities.

The Court explicitly stated that the decision of a Member State to forward a request does not bind the Commission insofar as the Commission must assess independently whether such a forwarding was legally possible. However, the question whether such a decision may or must be subject to judicial review by national courts, both as to its legality and as it being non-arbitrary, remains open. The question is not without importance given the fact that forwarding a request leads to a switch of the legal regime governing it; the applicant’s plea that art. 5, insofar as it allows such a switch of regimes resulting from a decision of the national authorities, is void, was not considered by the Court, since it took the view that this provision was not applicable anyway.

Indirectly, the judgment also crucially impacts the second way of dealing with EU-related requests for access to information by Polish authorities, i.e. the practice of rejecting such requests by directly applying art. 4 of the regulation.

In the framework of this practice, the authorities claim that since the regulation is directly applicable in all of the EU, and since the requested information is included in a document that is not only in the possession of those authorities, but also in the possession of an institution of the EU, the regulation is applicable to the request. This reasoning is based on art. 2(3) of the regulation, which states that it is applicable to “all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union”. As a result, Polish authorities apply art. 4 of the regulation, e.g. rejecting requests for information on the basis that the its disclosure would undermine the protection of the purpose of inspections, investigations and audits (such as for example infringement proceedings).

It is easy to see the incorrectness of this practice. The regulation only applies to requests handled by EU institutions; art. 4(1) and 4(2) state: “the institutions shall refuse access to a document where…” and so cannot form a basis of refusal by a national authority. The sole provision applicable to requests filed with national authorities is art. 5, which requires them to consult with the institutions or forward the request to them if it concerns documents originating from them. Nevertheless, this practice is widely accepted by Polish courts, including the Supreme Administrative Court.

The judgment of the General Court indirectly confirms the incorrectness of this practice. In it, the Court explicitly rejects the Commission’s claim that it was competent to issue a decision because the document at issue was covered by art. 2(3) of the regulation. It states that what is crucial here is the authority with which the request was filed. The Commission can only handle a request if it was filed with it or validly forwarded to it under art. 5. This position, while not directly concerning as such the applicability of the regulation to a request but only the authority competent of handling it, indirectly confirms that art. 2(3) of the regulation does not extend its applicability to any requests other than those filed with, or validly forward to, EU institutions. Therefore, the regulation cannot possibly be applied by national authorities with which a request was filed, the only exception being art. 5, which they must apply if the request concerns documents genuinely originating from EU institutions.”

Fundacja ePaństwo

Our aim is to develop democracy, open and transparent authorities and civic engagement. #opendata #transparenCEE

Krzysztof Izdebski

Written by

Krzysztof Izdebski — lawyer and civic activist. I am the Policy Director and Board Member in EPF http://epf.org.pl/en/. Follow me at TT @K_Izdebski

Fundacja ePaństwo

Our aim is to develop democracy, open and transparent authorities and civic engagement. #opendata #transparenCEE

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