Back to square one
After six years of battling over a disclosure case, the ECJ has failed to make any significant progress over the issue of access to official documents, argues Paul Stanley QC
Successful appeals from decisions of the General Court are infrequent; for the ECJ to conclude, in effect, that the General Court approached a case in a fundamentally incorrect way is rarer still. The ECJ's decision in case C-506/08 P MyTravel Group plc (21 July 2011) is therefore striking.
The case stretches back into what is now ancient history. In 1999, the European Commission declared a concentration between Airtours (later MyTravel) and its competitor First Choice was incompatible with the common market. That decision was annulled by the General Court in 2002. As the dust settled, the commission established a working group, consisting of members of the directorate-general for competition and the legal service, to decide what to do and in particular whether to appeal. That group presented its report, but in the event there was no appeal.
In 2005, MyTravel requested various documents pursuant to the EU's freedom of information legislation, including the report itself and various documents on which it was based. The commission refused to provide the documents requested, claiming that to do so would undermine protection of 'legal advice' and that production of the documents would 'seriously undermine the institution's decision-making process'. MyTravel sought review of that decision by the General Court, which dismissed the application (case T-403/05 MyTravel [2008] ECR II-2027).
The ECJ has now allowed an appeal '“ brought not by MyTravel, but by Sweden. The case saw various member states lined up on both sides. On the one hand, Sweden, Denmark, the Netherlands and Finland argued that the General Court had taken too broad a view of the circumstances in which documents could be refused. On the other hand, the commission was supported by Germany, France and the UK.
The commission's decision, and those of the General Court and the ECJ, necessarily dealt in some detail with the various different documents requested and withheld.
Those who regarded disclosure as undesirable saw the exceptions to disclosure as designed to safeguard an area of decision-making freedom for the institutions. The UK described this as involving the creation of a 'space for reflection' within the institution concerned. The General Court was accordingly ready to accept, without requiring much detail to be given, that the disclosure of officials' views might have a chilling effect on officials' willingness to be candid and open in internal discussions.
Different approach
The ECJ's approach is different, in three respects. First, the ECJ emphasises that exceptions to freedom of information are to be narrowly interpreted and applied. It is, of course, a commonplace of EU law that, where one has a right and exceptions, the exceptions are narrowly construed, and this general principle is applied to freedom of information requests under regulation 1049/2001 as well. So the judgment breaks no new ground in that respect. But, as so often with these clichés of interpretation, the real question is whether they are honoured in practice, and the ECJ's judgment evidently shows a much greater commitment to them than the General Court's.
The second legal difference is that the ECJ drew more significant implications from a distinction, apparent in the relevant legislation (article 4(3) of regulation 1049/2001) between the protection afforded to decision-making processes which are continuing, and the protection afforded once the decision has been taken. Once the decision has been closed, the protection is narrower. Where the General Court laid emphasis on the fact that there was still some protection, the ECJ thought it was more important to highlight that, under this legislative scheme, the burden to justify the non-disclosure of documents once a procedure has been closed is much higher. Again, this is as much a distinction in emphasis as in substance, but it is an important difference of emphasis.
The third legal difference is that the ECJ laid particular weight on the need for the institution concerned to explain why the non-disclosure was necessary in the particular case. This was, in the ECJ's view, where the General Court had gone most seriously wrong. It had been content to accept justifications presented at a very high degree of generality '“ about a general tendency of disclosure to undermine candour, in the abstract '“ rather than to demand detailed explanation of why that might be so in this particular case. In the ECJ's more sceptical view, such generalities were not sufficient. And so it annulled the original decision, and returned the case to the General Court for that court to consider those aspects of the case that had never been reached, because of the original (and, as it now turns out, erroneous) conclusions.
It is hard for an outsider to assess the merits of these respective positions. Open government is desirable '“ but good government is still more desirable. The commission and several major member states all think that this is hard to achieve if officials are looking over their shoulders and watching their backs. This view might be worth more than the ECJ gives it credit for. A requirement to prove how specifically advice might have been made more difficult in a particular case doesn't solve the problems that 'defensive' decision-making procedures may produce in practice.
It is now more than six years since the original decision to refuse access to the documents '“ and the case is back, if not at square one, then not much further. One might think that, with information, speed matters. The saga '“ perhaps not over yet '“ is a pretty poor advertisement for the union's institutional system.