June 02
Anjum Shabbir
Anjum Shabbir
4th May 2020
Institutional law Justice & Litigation

Analysis: “Reaffirming the Importance of the Interest in Bringing Proceedings in Access to Documents Cases: Igpour v Commission” by Araceli Turmo

A recent judgment of the Court of Justice provides an interesting clarification of an aspect of the 2018 ruling in the ClientEarth Case (C-57/16 P) that was not at the heart of the access to documents debate, yet was highly significant for similar claims in the future. In ruling that the NGO had retained an interest in bringing proceedings for the annulment of the decisions refusing to grant it access to documents related to a legislative initiative, even after it had obtained them, the Court seemed to create a new possibility for pressuring EU institutions to be more transparent. Allowing organisations such as ClientEarth to pursue the path of litigation even after the specific documents at issue have been made accessible could enable them to challenge the Commission’s general interpretation of presumptions of confidentiality, a major bone of contention in this area of EU law. This aspect of the ruling was based on what appeared to be a significant extension of the scope of the exception to the requirement that the applicant’s interest in the annulment be maintained throughout the proceedings. The judgment delivered on 30 April 2020 in Igpour v Commission (C-560 18 P), largely based on a meticulous exercise in distinguishing by Advocate General Pitruzella, rejects such an extension by restricting the normative scope of the ClientEarth precedent.

The Igpour Case finds its roots in infringement procedure 2013/4218, brought against Poland due to concerns with its national legislation on gambling services. During the pre-litigation phase, Poland sent the Commission draft legislation intended to remedy the alleged infringement. The Commission and the Republic of Malta both presented detailed opinions on this draft. Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych (Igpour), an organisation representing the interests of manufacturers, distributors and operators of amusement machines in Poland, requested access to the two opinions. The Commission denied this request as well as the confirmatory application under the third indent of Article 4(2) of Regulation 1049/2001, which allows institutions to refuse access where disclosure would undermine the protection of the purpose of inspections, investigations and audits. After Igpour brought an action for the annulment of the Commission’s decisions, the institution terminated the infringement proceedings and decided to grant Igpour access to the requested documents. It then successfully applied to the General Court for a declaration that the action had become devoid of purpose, as the Order of 10 July 2018 held that there was no longer any need to adjudicate on the action.

Igpour, supported by Sweden as it had been in the first instance, appealed this order. Out of the five grounds of appeal it put forward, the first was the most challenging, and the Court of Justice swiftly rejected the other grounds. The first ground of appeal was largely based on an optimistic reading of the part of the ClientEarth judgment in which the Court ruled on the claim that the action had become devoid of purpose. The Court focused on this aspect of the case and, interestingly, asked the Advocate General to confine himself to it. The Opinion is dedicated to arguing for a more restrictive understanding of that precedent. The Court relies upon a much shorter, albeit similar reasoning

The first stage of the reasoning reaffirms the importance of the general rule on the interest in bringing proceedings, which requires a strict construction of the exception found in cases such as ClientEarth. Both the Advocate General and the Court insist on the fundamental principles, such as the proper administration of justice, which justify the requirement that the purpose of an action must continue until the final decision and that the outcome of the case must be capable of conferring a specific advantage on the applicant. The existence – and persistence – of an interest in the annulment of the contested act is a matter of settled case law in Article 263 TFEU proceedings: the applicant must have a personal, vested and present (non-hypothetical) interest in the result of the proceedings and must discontinue them if this interest disappears. Although some flexibility has been introduced by the EU Courts, exceptions must remain limited. In ClientEarth, the Court relied on previous case law to hold that the applicant may retain an interest in the annulment in order to induce the author of the act to make suitable amendments in the future and avoid the risk of the same unlawfulness being repeated. The core legal issues raised in Igpour dealt with the interpretation of the criterion of the likelihood of recurrence of the unlawfulness, as well as the need for the applicant to have a specific, personal interest in preventing such recurrence.

If the contested decision was based on an unlawful interpretation of a general presumption of confidentiality under Article 4, the unlawfulness seems, by definition, likely to recur. In this sense,  one understanding of the exception could be that an applicant maintains an interest in any case where the wrongful interpretation of the derogations to the right of access is at stake. Paragraphs 48 and 50 of ClientEarth could have warranted such a construction, since they state that continuation of the interest is based on the likelihood of recurrence ‘irrespective of the particular circumstances of the case’. However, as Advocate General Pitruzzella pointed out, an interpretation of ClientEarth according to which the interest in bringing proceedings is automatically retained in all cases related to access to documents, because the institution might interpret the provision restricting the provision in the same way again, seems paradoxical. Both he and the Court reject such an interpretation in favour of a more case-specific approach. Simply proving that the unlawfulness is liable to reoccur in an abstract sense, for example that Article 4(2) is likely to be interpreted in a similar way in the future, cannot suffice if the procedural rules based on the interest in bringing proceedings are to have any purpose. Otherwise applicants would never lose their interest in bringing proceedings even after their specific demands – in this case gaining access to specific documents – have been met. The Advocate General and the Court also refused the request tocalling into question the general presumption of confidentiality which the case law has long attached to documents related to infringement proceedings during the pre-litigation stage, due to the very nature and purpose of that stage of the proceedings.

The next stage of the reasoning in Igpour focused on distinguishing the circumstances of this case from that which gave rise to ClientEarth. Advocate General Pitruzzella identified five variables which were essential to the ‘particular circumstances’ of that case and were absent here. In particular, the fact that ClientEarth dealt with environmental matters justified a more restrictive reading of the grounds for refusing access to documents. Moreover, ClientEarth is an NGO for the protection of the environment and is likely to be involved in similar cases in the future: paragraphs 54 and 55 of ClientEarth show how its specific activities meant that, from its perspective, the question of the lawfulness of the general presumption at issue was relevant in view of future requests for access to similar documents. By contrast, the situation which led Igpour to make such a request seems unlikely to reoccur. Another major difference is that ClientEarth concerned documents that were important elements of an EU legislative process. The Court’s approach had partly been based on a recognition of the importance of transparency in the EU legislative process. Here, the solution could not be based on the same considerations: the documents were related to a national legislative process and, at the EU level, to the pre-litigation stage of an infringement procedure. This also had an impact on another major difference, the fact that the basis for refusing access was a different provision of Article 4 of Regulation 1049/2001.

It is scarcely questionable that these factual differences constitute major justifications for the decision to reject an analogy with ClientEarth. Although this judgment in no way overrules that precedent, it confirms the importance of the specific conditions which led the Court to accept an exception to the requirement of the interest in bringing proceedings. This exception can therefore not serve to extend the procedural tools available to organisations seeking to modify the Commission’s attitude to transparency.


Araceli Turmo is Senior Lecturer in EU Law at the University of Nantes. Her recent publications include ‘Immutabilité des actes juridictionnels et droit de l’Union européenne: poursuite de l’exploration des mécanismes nationaux de révision et de réexamen par la Cour de justice’, RAE (2019) 3, and ‘A Dialogue of Unequals – The European Court of Justice Reasserts National Courts’ Obligations under Article 267(3) TFEU’, EuConst (2019) 340.

Araceli is also a member of EU Law Live’s Editorial Board, and her full bio can be accessedhere.



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