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ACCESS TO DOCUMENTS : COURT UPHOLDS COMMISSION'S REFUSAL.

In a ruling handed down on 13 September, the EU General Court rejected an action,abrought by the environmental organisation ClientEarth, for annulment of the European Commission's decision not to transmit certain studies on the conformity of member state laws implementing EU environmental legislation.

ClientEarth requested access to 63 studies on the conformity of certain member state laws with EU environmental legislation and eight implementing action plans. The NGO based its request on the Aarhus Convention on access to information, public participation in decision making and access to justice in environmental matter, as well as Regulations EC 1049/2001 (access to public documents) and EC 1367/2006 (transposition of the Aarhus Convention).

The Commission transmitted to the NGO 22 studies and eight action plans but refused access to all or part of another 41 studies, arguing that their disclosure could be harmful to investigations under way either by endangering the climate of mutual trust required for assessing the implementation of regulations, because it had not yet had the opportunity to analyse in detail the information in question, because doing so could hinder ongoing discussions to find a solution without going to court, or because it had not yet come to a decision on what further action to take on the cases studied.

For the documents not disclosed, the Commission noted that they were covered by the exceptions allowed by Regulation EC 1049/2001 on protection of the objectives of inspection, investigation and audit and protection of the institutions' decision making process.

In practice, it divided up the documents in terms of their scope and content. The first group included 22 studies and eight action plans, for which it gave complete access apart from the names of the authors of certain studies. For the other 41, designated as "contentious," the Commission gave the NGO partial access. For each contentious study, it transmitted the cover page, table of contents, list of abbreviations, an annex containing the legislation examined and the subdivisions entitled Introduction', Overview of legal framework in the member state' and Transposition and implementation framework'. On the other hand, the Commission refused to transmit, for each of these studies, the sections entitled Summary', Legal analysis of transposition measures' and Conclusions', as well as the annex containing a correlation table on the legislation of the member state concerned and relevant Union law. It also pointed out that these studies were drawn up for purely internal purposes in the context of the preliminary phase of investigations on the transposition of EU law and that, since it had not yet adopted a position on the conformity of the national legislation with EU law or on whether or not to launch infringement proceedings, releasing the documents requested would have undermined its internal decision making.

The Commission argued that the names of the authors of the studies are protected by the exception on right of access to documents foreseen in Regulation EC 1049/2001 relating to protection of the individual's privacy and integrity. As for the possibility allowed under the regulation to disregard exceptions to the right of access if an overriding public interest justifies disclosure, the Commission found in this case that the public interest was better protected by safeguarding the climate of mutual trust between it and member states as well as its discretion to adopt administrative decisions on possible infringements.

Since ClientEarth's request for access was partially granted, the General Court accepted the Commission's procedure and arguments and rejected the NGO's application.
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Publication:Europe Environment
Date:Sep 27, 2013
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