Analysis: “Setting the record straight on disclosure of a document by a third party and the obligation of EU Institutions to provide access to documents: Leino-Sandberg v European Parliament” by Anastasia Karatzia
Last week, the Court of Justice delivered its judgment in Leino-Sandberg v European Parliament (C‑761/18 P), an appeal against the General Court’s Order in Leino-Sandberg v European Parliament (T‑421/17). The General Court had held that there was no longer any need to adjudicate on the applicant’s action for the annulment of the European Parliament’s Decision A(2016) 15112 (the ‘contested decision’) because the requested document had already been published on the internet by a third party. In the contested decision, the European Parliament refused Professor Leino-Sandberg access to Decision A(2015) 4931 (the requested document) which was addressed to Emilio De Capitani and dealt with trilogue negotiations.
Mr De Capitani had published a version of the contested decision on an internet blog and had also launched a case before the CJEU contesting the partial access to the document granted to him by the European Parliament (T‑540/15). The European Parliament’s ground for refusing Professor Leino-Sandberg access to the requested document was based on Article 4(2) of Regulation 1049/2001: as the partial access granted to the requested document was being contested by its addressee (Mr De Capitani) before the Court and the judicial proceedings were still in progress at the time, its disclosure would undermine the protection of court proceedings.
The Court of Justice’s judgment in the case at hand is notable both from the perspective of the EU Institutions’ obligation to provide access to documents on the basis of Regulation 1049/2001, and the procedural condition of when an action on the basis of Article 263 TFEU becomes devoid of purpose in the context of access to EU Institutions’ documents. In particular, the judgment answers the question of whether an EU Institution may be considered as having fulfilled its obligation to provide access to a document in case that document was made publicly available by a third party. As Advocate General (AG) Bobek explained in his Opinion on the case, Regulation 1049/2001 is silent on documents being made available to the public by third parties. This commentary will illustrate that the Court has now closed this gap as part of looking into the procedural question of whether the appellant maintained an interest in the proceedings that would merit the continuation of the case.
Indeed, a key characteristic of the case is that the substantive and the procedural aspects of the case were not entirely separated. As noted both by AG Bobek and the Court, ‘while it is true that interest in bringing proceedings (…) constitutes a procedural condition independent of the substantive law applicable to the substance of the case, it cannot however be detached from that law as whether there is an interest in bringing proceedings must be assessed in the light of the substantive claim that has been made in the application initiating the proceedings’ (paragraph 35, and point 53 of the AG’s Opinion).
It is in this context that the Court relied on Regulation 1049/2001 to examine whether the action became devoid of purpose and whether there was no longer any need to adjudicate as a result of the document being published by a third party. The Court examined the first ground of appeal which was supported by two complaints: that the action retained its purpose because the Parliament had not withdrawn the contested decision, and that the General Court applied a narrow and incorrect criterion in examining whether the action became devoid of purpose by merely considering that the appellant could legally use the document at issue following its publication by a third party on the internet ‘in a version that was annotated and underlined, whereas her status as an academic researcher required her to use only information obtained from authentic sources’ (paragraph 26).
Even though the European Parliament did not withdraw the contested decision, could the applicant have obtained full satisfaction from the third-party disclosure thus losing her interest in bringing proceedings (paragraph 34)? To answer this question, the Court did not focus on the specifics of the applicant in question, such as her position as a researcher and whether that required her to use only information from authentic sources to comply with academic standards of quality and objectivity. Instead, the Court approached the question from the perspective of the rights and obligations established under Regulation 1049/2001, reiterating that ‘the Regulation establishes, first, the right, in principle, for any person to access documents of an Institution and, second, the obligation, in principle, of an Institution to grant access to its documents’ (paragraph 40).
The examination of the applicant’s interest started with an explanation of the objectives and the spirit of Regulation 1049/2001 as well as the Treaty and Charter provisions regarding openness and access to documents (Article 15 TFEU, Article 10 TEU, Article 289 TFEU, Article 42 of the Charter). The Court then highlighted that the only exceptions to the right of public access to documents on the EU Institutions are those contained in Article 4 of Regulation 1049/2001, while Article 10 of the Regulation sets out the ways in which the EU Institution can fulfil its obligation to grant access to documents. Article 10(2) provides for the only other way in which the Institution can fulfil its obligation of granting access to documents without directly providing a copy of the document to the person requesting it: ‘if a document has already been released by the Institution concerned and is easily accessible to the applicant, the Institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document.’
Hence, it is only if the Institution previously released the requested document and informed the applicant how to obtain it that it satisfied its obligation to grant access to that document in the same way as if it itself had directly communicated the document to the applicant (paragraph 44). This finding is grounded on the need to ensure the exhaustive and complete nature of the document.
Overall, the judgment requires active behaviour from the European Parliament (and by extension any EU Institution) in cases where a document already exists in the public domain. For a previous disclosure to release the EU Institution from its obligation to provide access to documents, the EU Institution itself must inform the applicant about the existence of the document in the public domain. A ‘document disclosed by a third party cannot be regarded as constituting an official document, or as expressing the official position of the Institution’ unless the EU Institution ‘unequivocally endorses that document as a document that emanated from it and expressed its official opinion’ (paragraph 46). On the other hand, passive behaviour where the EU Institution has simply not expressed doubts as to the originality of a document that was published by a third party and came to the knowledge of the applicant is not enough to release the Institution from its obligation to provide access (see paragraph 24 to see the opposing argument of the European Parliament). Thus the European Parliament cannot escape its obligation to provide access to documents simply by not doubting the originality and the completeness of a document disclosed by a third party.
In the case at hand, the Court of Justice found that the European Parliament had not fulfilled its obligation. The appellant had not obtained access to the document within the meaning of Regulation 1049/2001, and thus maintained her interest in the proceedings. In the first instance case, since the General Court upheld the European Parliament’s application for a declaration that there is no need to adjudicate, the General Court did not look into the substance of the case. Three and a half years after Professor Leino-Sandberg brought the case before the Luxembourg Courts, the validity of the European Parliament’s refusal to grant access to the applicant is yet to be assessed, as the Court has now referred the case back to the General Court for adjudication on the substance. Even so, the Court of Justice’s judgment remains significant in so far as it maintains the key responsibility of the EU Institutions to provide access instead of diluting it by obliging an applicant to first look out for a published version of a document and verify on her own its lawfulness, accuracy, and completeness before requesting access.
Anastasia Karatzia is Lecturer in Law at School of Law, University of Essex. Her research focuses on EU financial and banking law, and EU institutional and constitutional law.