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The Court of Justice refuses to extend the transparency of judicial proceedings

Araceli Turmo , 27 septembre 2010

On 21 September 2010, the Court of Justice delivered an important ruling concerning the application of the principle of transparency to judicial proceedings. In Sweden and API v Commission (Joined Cases C-514/07 P, C-528/07 P and C-532/07 P), Sweden, the International Press Association (API) and the European Commission had brought appeals seeking to set aside a judgment of the General Court (T-36/04) which annulled in part the decision of the Commission of 20 November 2003 refusing an application by API for access to the written pleadings lodged by the Commission in a number of proceedings, according to Article 6 of Regulation (EC) No 1049/2001. The Commission only granted the application in respect of the pleadings lodged in the cases which concerned references for a preliminary ruling, but not as regards the remainder, and confirmed this refusal in the contested decision.

API brought an action seeking the annulment of the decision, which was upheld in part in the judgment under appeal. The General Court stated that the right of public access to documents is subject to limitations, and that a case-by-case assessment of the content of the documents is not always necessary. It held that the pleadings lodged in pending cases are manifestly covered by the exception relating to the protection of court proceedings, and that the Commission only has a duty to undertake a specific examination of pleadings after hearings have taken place. As regards the access to the pleadings relating to cases which had already been closed but were linked to cases still pending, it held that the Commission’s refusal was not justified. The remainder of the action brought by API was dismissed. Three appeals were brought against the first instance judgment. In Sweden and API v Commission (C-514/07 P), Sweden and API claimed that the Commission had no right not to disclose its pleadings before the hearing had been held. The same claims were brought forward by API in case C-528/07 P. In Commission v API (C-532/07 P), the Commission claimed the Court should set aside the judgment in so far as it annulled the decision.

The Court of Justice held that the Commission’s appeal must be dismissed in its entirety. It first held that it is clear from the case law of the Court of Justice that the institution refusing access to a document may base its decision on general presumptions which apply to certain categories of documents. It went on to determine whether the Commission was entitled to base its decision on the presumption that disclosure of those pleadings would undermine the court proceedings. Firstly, it held that pleadings lodged in court proceedings, being part of judicial activities, are excluded by both Regulation 1049/2001 and Article 15 of the TFEU Treaty from the scope of the obligations of transparency. This was also based on the principles of equality of arms, on which the Commission can rely, and of the sound administration of justice, since proceedings may be disrupted by such disclosures. The Court also rejected the second plea, stating that the links between Articles 226 and of the 228 EC Treaty are not such as to justify a presumption that the disclosure of pleadings lodged in a procedure on the basis of 226 of the EC Treaty would undermine investigations related to Article 228 of the EC Treaty. The Court dismissed the Commission’s third plea too, holding that there was no reason to presume that the disclosure of the pleadings lodged in a case where the proceedings have been closed could disrupt them.

The Court of Justice then examined the two remaining appeals together, as they were both based on the same pleas in law. It restated that the Commission may base its response on the presumption that disclosure of pleadings undermines the proceedings when they have not yet reached the hearing stage, and that the General Court had not ruled out the possibility that the interest of transparency could constitute an overriding public interest for the purpose of the Regulation, and that it had, indeed, undertaken a balancing exercise between that interest and the aim of preventing external influences on the proper conduct of court proceedings. The Court added that API had not provided sufficiently specific claims to justify the disclosure of the documents on the basis of such a public interest.

The Court of Justice therefore dismissed all the appeals brought against the first instance judgment. It is worth noting that the Advocate General had taken an entirely different stand. He stated that, while a litigation is ongoing, it should be for the Court, not the Commission, to decide whether the public should have access to the documents in a particular case, since only the Court is in a position to weigh the competing interests at stake. In the event that the Court wished to decide the case by referring to the Regulation, he proposed that as regards pending cases, a case-by-case approach should be adopted ; and as regards closed cases, it would be reasonable to adopt a general principle favouring access to documents.

Reproduction autorisée avec l'indication: Araceli Turmo, "The Court of Justice refuses to extend the transparency of judicial proceedings", www.ceje.ch, actualité du 27 septembre 2010.