In Case C‑57/16 P, ClientEarth v Commission, the Grand Chamber of the Court of Justice was called to decide if the Commission could refuse to grant access to documents drawn up in the context of an impact assessment procedure. In essence, the Court held that such documents are covered by the principle of wider access to the documents adopted by the EU institutions when acting in their legislative capacity, and that access to those documents should therefore be granted.

ClientEarth had requested access to four documents, via two requests for access to documents: 1) 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; 2) an opinion of the Impact Assessment Board on the report; 3) a draft impact assessment document regarding access to justice in environmental matters; and 4) the opinion of the Impact Assessment Board on that draft.

The Commission refused to grant access to those documents on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001 (“[a]ccess 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”).

ClientEarth filed an action for annulment of the Commission decisions, before the General Court; the General Court did not annul the decisions, ruling that “for the purposes of applying the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission is entitled to presume, without carrying out a specific and individual examination of each of the documents drawn up in the context of preparing an impact assessment, that the disclosure of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal.[1]. As a result, the General Court considered that the documents requested “fell within the scope of that general presumption[2] and upheld the Commission’s conclusion that there was “no overriding public interest in disclosure of the documents[3].

ClientEarth appealed against the General Court’s judgment on the (main) grounds that, by recognising the existence of that general presumption of confidentiality, the General Court misapplied the Court of Justice’s case-law, in that 1) presumptions of confidentiality must be interpreted and applied strictly, and that in any case, 2) the presumption would not apply to the case at hand.

The Court of Justice set aside the General Court judgment, ruling that “the General Court erred in law in considering […] that, for the purpose of applying the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, 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 information within the meaning of Article 2(1)(d) of Regulation No 1367/2006.”[4] As a result, the Court annulled the Commission’s decisions. More specifically, the main findings of the Court are as follows:

  • impact assessment reports and the accompanying opinions of the Impact Assessment Board contain information constituting important elements of the EU legislative process, thereby forming part of that process;[5]
  • disclosure of these documents is likely to increase the transparency and openness of the legislative process as a whole; however, such a disclosure must occur at a time when the Commission’s decision-making process is still ongoing 1) to enable citizens to understand the options envisaged and the choices made by that institution and 2) to put those citizens in a position effectively to make their views known regarding those choices before those choices have been definitively adopted;[6]
  • the grounds for refusal of a request for access to documents – set out in Article 4(3) of Regulation 1049/2001 – must be interpreted all the more strictly when those documents contain environmental information.[7]

The Court used these principles to assess whether it can be legitimately presumed that there is any risk for the Commission’s decision-making process to be seriously undermined by the disclosure of these documents.

Building on its previous case-law,[8] the Court confirmed that a general presumption can be recognised in respect of a new[9] category of documents, but only after that it has been shown that “it is reasonably foreseeable that disclosure of the type of document falling within that category would be liable actually to undermine the interest protected by the exception in question.[10]

The Court went on to state that, in any case, general presumptions must be interpreted and applied strictly, as they “constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union”.[11] It held that all grounds for refusal laid down under Article 4(3) Regulation (EC) 1049/2001 must be applied in a restrictive way when the documents the access to which is requested are part of a legislative process. This is even more so when the documents contain environmental information.[12]

Second, the Court confirmed the established principle that a general presumption can validly be relied upon to refuse access to certain categories of documents further to a “specific and individual assessment of the documents at issue[13] finding that there is a “specific, actual and reasonably foreseeable risk that access to the documents at issue would seriously undermine the [decision-making] process”.[14]

Only where such a risk is found to exist, must it be assessed whether there is any overriding public interest in disclosing the documents despite the demonstrated risk.[15] In general, even in that case, the application of a general presumption of confidentiality does not prevent demonstrating that a given document is not covered by that presumption, or that there is an overriding public interest justifying disclosure.[16]

Main takeaways of the judgment

The Court made clear that “impact assessment reports and the accompanying opinions of the Impact Assessment Board contain […] information constituting important elements of the EU legislative process[17] which fall within the rules on provision of direct access, in electronic form, to “legislative documents” (under Article 12(2) of Regulation (EC) 1049/2001). Accordingly, the general presumption of confidentiality cannot be applied to them.[18] The Commission can only refuse access[19] when there is a specific, actual and reasonably foreseeable risk that disclosing the documents at issue would seriously undermine the decision-making process. Where such a risk is established, the Commission will still need to consider if there is an overriding public interest in disclosing the requested documents.