March 01
2021
Dolores Utrilla
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21st January 2021
Human Rights Institutional law Justice & Litigation

Court of Justice: disclosure of a document by a third party does not in itself satisfy the right to access to documents hold by the EU institutions

Today, the Court of Justice has rendered its judgment in Leino-Sandberg v Parliament (C761/18 P), clarifying the scope of the right of access to documents of the EU institutions in cases where a version of the document has been published online by a third party, the main document being part of proceedings pending before EU courts.

The case is an appeal brought by Ms Päivi Leino-Sandberg (a Professor of International and European Law at the University of Eastern Finland) against the General Court’s order in Leino-Sandberg v Parliament (T421/17), by which the General Court held that there was no longer any need to adjudicate on the applicant’s action for the annulment of the European Parliament Decision A(2016) 15112, of 3 April 2017, refusing to grant her access to Decision A(2015) 4931 of the Parliament, of 8 July 2015, addressed to Emilio De Capitani.

Ms Leino-Sandberg had requested access to Decision A(2015) 4931 in the context of two research projects relating to transparency in trilogues. However, the requested document was the subject of a pending action for annulment lodged by Mr De Capitani (T-540/15). In the meantime, Mr De Capitani made that document available to the public by publishing it on the internet in a blog. However, the Parliament refused to grant Ms Leino-Sandberg access to the requested document, on the ground that, as it was being contested by its addressee before the General Court and the judicial proceedings were still in progress, its disclosure would undermine the protection of court proceedings provided for by the second indent of Article 4(2) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.

By the order under appeal, the General Court held that there was no longer any need to adjudicate on the appellant’s action as, following the disclosure of the document at issue on the internet, the action had become devoid of purpose. The General Court excluded the application of the case law of the Court of Justice that an applicant may retain an interest in seeking the annulment of an act of a European Union institution to prevent its alleged unlawfulness recurring in the future. According to the General Court, the refusal made by the Parliament was specific to the case and ad hoc in nature.

In its judgment today, the Court of Justice set aside the General Court’s order and referred the case back to it. This was done on the basis that the mere disclosure of the requested document by a third party, while the Parliament continues to refuse to grant the applicant access to that document, cannot be considered as sufficient to understand that the appellant has obtained access to that document, within the meaning of Regulation 1049/2001, nor that, therefore, she no longer has any interest in seeking the annulment of the decision at issue solely as a result of that disclosure. According to today’s judgment, in such circumstances the appellant retains a genuine interest in obtaining access to an authenticated version of the requested document, within the meaning of Article 10(1) and (2) of the Regulation, guaranteeing that the concerned institution is the author and that the document expresses its official position.

The judgment is available here.

An Op-Ed on this case by Anastasia Karatzia will follow shortly.

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