The EU General Court recently issued a judgment finding that the Commission was justified in refusing to grant ClientEarth access to documents. The importance of this case is that it again shows there are clear limits to the institutions' obligation to "go public" and be transparent when they are adopting measures.
ClientEarth had requested to see a number of different documents:
- Impact Assessment on access to justice in environmental matters (the Aarhus Convention);
- Impact Assessment on the revision of the EU legal framework on environmental inspections and surveillance;
- The opinions of the Impact Assessment Boards in both of the above.
The requests for access to documents were made under the EU Regulation on public access to documents. ClientEarth argued that the Commission violated this Regulation when it refused to grant access to the documents and that it also breached its duty under EU law to state reasons.
The Commission said that it had refused ClientEarth's requests on the basis that the impact assessments were still ongoing. According to the Commission, disclosure of the documents would "seriously undermine its ongoing decision-making processes" and reduce its ability to reach a compromise. The Commission said that it needed an atmosphere of trust which might be hindered by disclosure of the documents. It argued that there was no overriding public interest in the disclosure of the documents requested. Finally, the Commission said that all of the documents relating to the impact assessments would be published when the legislative proposals were adopted by the Commission.
The Court rejected ClientEarth's challenge. It found that the documents requested fell into the exception provided for in the EU Regulation on public access to documents. In this case, the Court found that there is a risk that third parties would attempt to influence the Commission's choice of policy option if the impact assessment reports were disclosed. The Court went on to say that where this exception applies, the Commission is not required to provide specific reasons for refusing access to documents.
This case follows another challenge brought by ClientEarth relating to access to documents. In July 2015, the Court of Justice found that the Aarhus Convention could not be relied upon to invalidate the EU Regulation on public access to documents.
These cases highlight the importance for companies and other stakeholders to participate actively in the public consultation on EU legislation if they wish to be involved in the decision-making process. After the public consultation phase is over, it becomes extremely difficult for stakeholders to have formal access to documents while the Commission is preparing the impact assessment. However, the Court accepted that access to the impact assessment reports and other documentation must be granted once the Commission has decided to either adopt or abandon the policy initiative in question.