3 Colum. J. Eur. L. 283 (1997)
Geert van Calster. Institute of Environmental Law, Collegium Falconis, K.U.Leuven; SJ Berwin & Co, Brussels.
Transparency – Access to Documents – Commission Decision and Code of Conduct – Legal Status – Duty to Motivate
- Facts and Procedure
The applicants sought access to Commission Services documents, relying upon the 1994 Code of Conduct on public access to Commission documents. The documents concern EC intervention in the “Mullaghmore project.” In 1991, Irishauthorities announced a plan to build a visitors’ center at Mullaghmore, in western Ireland, proposing to use EC Structural Funds for the project. The applicant in this case, World Wide Fund for Nature – United Kingdom (“WWF”) lodged a complaint with the Commission, claiming that EC funding of the project would involve a wrongful application of Structural Funds. WWF argued that the project infringed EC environmental law. The Commission rejected WWF’s claim and on 7 October 1992, it formally decided not to initiate proceedings against Ireland under Article 169 of the EC Treaty. WWF launched an action for annulment against this decision. This action was declared inadmissible.
WWF subsequently applied for disclosure of the relevant Commission documents. By two separate letters in identical terms, each dated 4 November 1994 and written to Directorate-General (DG) XI (Environment) and XVI (Regional Policies), the applicants relied on Decision 94/90, requesting access to all Commission documents relating to the examination of the Mullaghmore project and particularly to the examination of the question whether Structural Funds might be used for it. By letters dated 17 November 1994 and 24 November 1994, Mr. KrIamer (DG XI) and Mr. Landaburu (DG XVI), informed the applicants of the rejection of their request. Given its importance, the exact wording of these letters is repeated below.
Mr. Kramer’s letter read: “I regret to inform you that the documents you have requested fall under the exceptions to access provided for under the access policy. Consequently, I do not intend to make the documents available. The exceptions serve to protect public and private interests, and to ensure that the Commission’s internal deliberations remain confidential. I attach a list of them for your information, and can inform you that the relevant exemptions in the case of the documents you have requested are the protection of the public interest (in particular, inspections and investigations) and the protection of the Commission’s interest in the confidentiality of its own proceedings. The documents you have requested relate to the investigation of complaints, as well\ as to the Commission’s internal deliberations.
The letter from DG XVI stated: “I regret to inform you that the additional documents you have requested fall under the exemptions to access provided for under the access policy. Consequently, I do not intend to make the documents available. The exemptions serve in particular to ensure that the Commission’s internal deliberations remain confidential. Such documents would include all internal notes, exchange of letters between services including the legal service, and all other information whose disclosure would infringe the confidentiality of the Commission’s deliberations.”
On 19 December 1994, the applicant submitted so-called confirmatory applications, confirming its wish to have the documents disclosed. The applications represent an administrative appeal to the original decision and are sent to the Secretary General of the Commission. Two separate letters were written, referring to the refusals of DG XI and DG XVI, respectively. The Secretary-General replied on 2 February 1995, in a single letter, formulated as follows:
Thank you for your letters … in which you seek review of the intention of Mr. Kramer …. and Mr. Landaburu … to refuse access to the Commission documents relating to the examination of the Mullaghmore project …. In your letters you argue that in the interests of promoting transparency in the Commission’s decision making process and strengthening the confidence of the public in the administration, the Commission should only refuse access . . . if this is absolutely indispensable, and that the exemptions to access to Commission documents must be interpreted narrowly. That is actually the way the Commission applies its policy of transparency: each request is treated individually and thoroughly examined on a case-by-case basis. The fundamental principle guiding the consideration of each request is that the public will have the widest possible access to documents held by the Commission, albeit with certain exemptions to protect public and private interests which could be damaged if access to certain documents were permitted, and to ensure that the Commission can deliberate in confidence. These exceptions were expressly envisaged by the Code of Conduct …. Having examined your request, I have to confirm the position of Mr. Landaburu and Mr. Kramer, for the reason that the disclosure could affect the protection of the Commission interest in the confidentiality of its proceedings, and the protection of the public interest, in particular the proper progress of the infringement proceeding.
The letter of 2 February 1995 is the decision which is challenged in the proceedings.