EUROPEAN UNION
EU LAW AND FREEDOM OF INFORMATION
1. INTRODUCTION
1.1 Freedom of information was not one of the 'four freedoms' which formed the foundations of the European project. The freedoms which a European common market and customs union were intended to herald were simply:
a) the ability freely to ship goods for trade across national boundaries ;
b) the freedom of workers to 'up sticks' and go and take jobs abroad ;
c) the freedom of individuals and companies to offer their economic services and, if so minded, to establish their businesses abroad ; and
d) the freedom to transfer money across European borders.
1.2 However, the ambitions of the EU have long since outgrown the purely functionalist economic free trade area aims which were first set out in the 1957 Treaty of Rome. For example, one of the EU’s aims now is to establish a common 'area of freedom, security and justice' in which, among other things, a common EU policy on asylum in, and immigration into, the EU may be developed , police action may be coordinated, criminal law may be harmonised, and the judgments of national courts in criminal and in civil matters may be recognised and given effect Europe-wide.
1.3 To further these ends, information on individuals might be shared among the public authorities of the Member States. Thus Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communication services or of public communications networks, seeks to harmonise the obligations of Internet service providers in the Member States to retain data garnered by them automatically in the course of the use of their services, and to make them available to the Member State authorities for the purpose of the investigation, detection and prosecution of serious crimes.
1.4 This official need to share information of course, immediately, brings up the possibility of abuse, and hence the need for regulation to ensure that the interests of the individual potentially informed upon or against are duly taken into account. Thus data protection laws can be seen as the necessary corollary in a national or supra-national polity which aspires to respect the principles of the rule of law in this information age.
1.5 A further realisation of the rule of law in the context of the information age is the ideal of transparency: that members of civil society should be able to ascertain the factual and legal bases on which official decisions are being made. This leads to the need for rules governing the possibility of access by interested parties to information held by public authorities. In Netherlands v Council, the Court of Justice further noted that
the domestic legislation of most Member States now enshrines in a general manner the public’s right of access to documents held by public authorities as a constitutional or legislative principle.
1.6 Clearly, however, there is going to be a constant (productive?) tension and possibility of conflict between these two “information age” rule-of-law principles, namely:
a) the right of individuals as individuals to protection against the misuse of data on them held by public authorities ('data protection laws'); and
b) the right of individuals as members of civil society to know what information is being used by public authorities in making decisions in the public sphere ('freedom of information' laws).
1.7 The tension between these two principles (protection of private data and transparency as regards publicly held information) is paralleled by – but does not completely mirror – the tensions already implicit in the law between:
a) the recognition of an individual’s right to privacy as against the public’s 'right to know' proclaimed by a free press; and
b) an individual’s legitimate expectation to respect for confidentiality as against another’s right to free expression.
2. TREATY PROVISIONS
2.1 The twin principles of freedom of information and of data protection are expressly recognised within the provisions of the TFEU.
2.2 Article 15(1) TFEU (formerly Article 255 EC) sets out the general principle that 'in order to promote good governance and ensure the participation of civil society', the EU institutions 'shall conduct their work as openly as possible', noting in particular, in Article 15(2), that the European Parliament shall meet in public (as shall the Council when considering and voting on a draft legislative act) and, under Article 15(2)(v) TFEU, 'shall ensure publication of the documents relating to the legislative procedures'.
2.3 Article 16(1) TFEU (formerly Article 286 EC) states that 'everyone has the right to the protection of personal data concerning them'. Article 16(2) TFEU provides an express Treaty basis for the adoption of EU legislation concerning the processing of data on individuals, both by the EU and by the Member States when carrying out activities falling within the scope of EU law. Such EU legislation shall be aimed at protecting the individual’s interest in such 'personal data' and regulating its free movement. Due compliance with these rules is subject to the control of independent authorities.
3. EU FUNDAMENTAL RIGHTS AND INFORMATION ACCESS
Freedom of Information and the EU Charter of Fundamental Rights
3.1 Article 42 of the EU Charter of Fundamental Rights (“CFR”) provides, under the heading 'Right of access to documents', that any citizen of the Union – and any natural or legal person residing or having its registered office in a Member State – has a right of access to documents (whether in hard copies, or in electronic or other form) of the EU’s institutions, bodies, offices and agencies.
3.2 Article 42 CFR echoes the terms of Article 15 TFEU and the EU secondary legislation adopted thereunder (notably Regulation (EC) No 1049/2001 ). Article 52(2) CFR provides that
rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.
Freedom of Information and the ECHR
3.3 The CJEU has proclaimed that the right to freedom of expression in the public square and the right to freedom of expression within employment, against a background of duties relative to the maintenance of mutual trust and confidence within that employment are both unwritten principles of EU law which parallel and reflect the ECHR provisions on freedom of expression.
3.4 There is no express provision in the European Convention on Human Rights guaranteeing a right of access to individual or general information held by public authorities as distinct from the right guaranteed – under both Article 10 ECHR and Article 11 CFR – freely to express and to receive and impart information and ideas one already has, without interference by public authority and regardless of frontiers.
3.5 The European Court of Human Rights has, however, more recently begun to tease out the implications of the right to 'receive … information' set out in Article 10 ECHR. The Strasbourg Court has begun to develop the idea implicit in Article 10 ECHR of a positive obligation on the State authorities – for example, in implementation of the State's responsibility to nurture and further the freedom of the press to carry out its investigative functions in the public interest. This may entail the State actively removing obstacles which exist solely because of the historic fact of public authorities holding a monopoly on information. Thus, in Kenedi v Hungary the Strasbourg Court held that Hungary’s refusal to allow a professional historian access to historical documentation (which access had been authorised by a court order) was incompatible with his rights under Article 10 ECHR, given that access to original documentary sources for legitimate historical research was an essential element of the exercise of his right to freedom of expression.
3.6 Further, in Társaság a Szabadságjogokért v Hungary, the European Court of Human Rights upheld the complaint of the Hungarian Civil Liberties Union that the decisions of the Hungarian courts denying it access to the details of a parliamentarian’s complaint pending before the Constitutional Court, had amounted to a breach of the Union's right to have access to information of public interest. In the Strasbourg Court’s view, the submission of an application for an a posteriori abstract review of this legislation – especially by a Member of Parliament – undoubtedly constituted a matter of public interest. Consequently, the European Court of Human Rights found that the applicant – a recognised human rights NGO which the Court considered was properly exercising the function of 'social watchdog' and so was entitled to similar Convention protection to that afforded to the press – was involved in the legitimate gathering of information on a matter of public importance. In these circumstances, the Strasbourg Court considered that the refusal on the part of the Hungarian Constitutional Court to release the requested information 'amounted to a form of censorship' contrary to the requirements of Article 10 ECHR.
3.7 Lastly, in Haralambie v Romania, the Strasbourg Court reiterated the vital interest for individuals who were the subject of personal files held by the public authorities to be able to have access to them. The European Court of Human Rights emphasised that the authorities had a duty to provide an effective procedure for obtaining access to such information, and that their failure to provide for an effective and accessible procedure to enable the applicant to obtain access to his personal security files within a reasonable time constituted a violation of Article 8 ECHR.
Freedom of Information and the EU law principle of transparency
3.8 The Grand Chamber of the Court of Justice has noted:
The principle of transparency is stated in Articles 1 TEU and 10 TEU and in Article 15 TFEU. It enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system…
3.9 Nothing is expressly said in the Treaty of the need for openness or publication of the workings of the Commission. However Article 15(3) TFEU (formerly Article 255(1) EC) sets out the general principle that any natural or legal person resident with the Union shall have a right of access to documents of Union institutions, bodies, offices and agencies, whatever their medium, on the conditions laid down by the Council. This is subject to particular EU regulation on the issue specifying the 'general principles and limits on grounds of public or private interest'.
3.10 Consistently with such general EU regulation, each EU body is then required to 'ensure that its proceedings are transparent' and to set out in its own particular Rules of Procedure specific provisions regarding access to its documents, although the Court of Justice of the European Union (“CJEU”) and the European Central Bank (“ECB”) and the European Investment Bank (“EIB”) are said to be subject to these transparency and document access requirements 'only when exercising their administrative tasks.'
4. EU SECONDARY LEGISLATION ON ACCESS TO DOCUMENTS
4.1 Regulation (EC) No 1049/2001 aims at facilitating the 'fullest possible public access’ to EU documents (particularly in cases where the EU institutions are acting in a legislative capacity), while – at the same time – seeking to preserve the 'effectiveness' of the institutions’ decision-making process, by preserving the secrecy of the institutions’ internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks (Article 4(3)).
4.2 It should in any event be noted that the EU access-to-documents regime applies only to the EU’s own institutions, bodies, offices and agencies. Strictly, it is not a freedom of information regime. Instead, as the General Court has stated:
[T]he concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.
4.3 The protection and promotion of freedom of information by and within the Member States remains a matter for Member States to regulate. European Union law does not yet extend to giving a right of access to documents held – in their own right rather than as agents for the EU – by public authorities of the Member States, though Recital 15 of Regulation (EC) No 1049/2001, which is the central provision of the EU freedom of information regime, states:
Even though it is neither the object nor the effect of this Regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and should respect the security rules of the institutions.
4.4 Somewhat tendentiously, it is claimed that the right of public access to documents of the EU institutions is related to the ‘democratic nature’ of those EU institutions. Although the Regulation sets time-limits within which to respond to document access requests, failure on the part of the EU to comply with the time-limits laid down in that provision does not lead automatically to the annulment of the decision adopted after the deadline, as this would merely cause the administrative procedure for access to documents to be reopened. Instead, compensation for any loss resulting from the lateness of the institutional response may be sought through an action for damages.
4.5 Article 4 of the EU Regulation also sets out a series of possible permissible reasons for refusing access to (or selectively redacting) requested documentation. As a derogation from the general principle of public access to documents held by the EU, these exceptions must be interpreted narrowly and applied strictly. These exceptions to the application of the principle of transparency include:
- under reference to Article 4(1)(a), where disclosure would undermine the protection of the public interest as regards:
(a) public security,
(b) defence and military matters
(c) international relations, and/or
(d) the financial, monetary or economic policy of the EU or of a Member State .
- under reference to Article 4(1)(b), where refusal may also be made on the basis of harm to the privacy and the integrity of the individual, having particular regard to the EU’s data protection legislation (considered further below).
- under reference to Article 4(2), unless there is an overriding public interest in disclosure, the EU institutions are also required to refuse access to a document where its disclosure would undermine the protection of:
a) commercial interests of a natural or legal person, including intellectual property ;
b) court proceedings and legal advice ; and
c) the purpose of inspections, investigations and audits.
- under reference to Article 4(3) where the document contains contains opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, disclosure may be refused even after the decision has been taken if such disclosure would “seriously undermine the institution's decision-making process” unless there is an overriding public interest in disclosure
4.6 In principle, the right of access also applies to EU documents relating to the Common Foreign and Security Policy and to police and judicial cooperation in criminal matters.
4.7 In principle, too, the EU freedom of information regime is not limited only to documents drawn up by the EU institutions, but may also apply to documents received by them, although allowing for a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement. But Member States do not have any general and unconditional right of veto on the disclosure of a document held by a Community institution simply because it originates from that Member State.
4.8 The EU regulation sets up a two-stage administrative procedure in relation to dealing with access to documents requests, with the additional possibility of court proceedings being taken by a disappointed applicant before the CJEU or a complaint being made to the European Ombudsman. In relation to the ombudsman, one may note the provisions of Article 43 CFR which states that
any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.
4.9 Any refusal of the EU institutions to produce requested documentation will be subject to judicial review before the General Court, with a right of appeal therefrom to the Court of Justice.
5. FREEDOM OF INFORMATION AND THE CJEU
Freedom of information v. protection of privacy
5.1 The EU legislature enacted in 2001 not only a freedom of information measure in Regulation (EC) 1049/2001 but also Regulation (EC) 45/2001 on data protection The CJEU has held that purpose of the right under EU law of access to information held on an individual is primarily in order to verify in particular the accuracy of the data and the lawfulness of the data processing, but that the interests or the rights and freedoms of the data subject are not overriding.
5.2 As we have seen, the first regulation seeks to guarantee the “widest possible access to document” held by EU institutions or bodies. The data protection legislation pulls in the opposite direction seeking to ensure the proper protection the privacy of individuals whose personal data is processed by EU institutions or bodies As has been observed:
“The regulations … pursue potentially conflicting purposes. This becomes evident upon closer examination of their provisions. For instance, Article 8 of Regulation (EC) 45/2001 [on data protection] provides that data may only be transferred to a third party recipient if the necessity of the transfer is demonstrated (‘the necessity test’) while it is a central tenet of Regulation (EC) 1049/2001 [on freedom of information], set out in Article 6(1), that no reason need to be provided in support of a request for access to documents.”
5.3 But in its decision in Commission v Bavarian Lager the CJEU - overruling the Grand Chamber’s analysis on this point - has also held that even if important economic interests are at stake, there is no primacy or priority to be assumed for the objective of transparency/freedom of information, over the right to protection of personal data. And departing from the analysis of AG Sharpston the CJEU held that the request made to the Commission for disclosure of the names of those who attended an invitation only meeting with the Commission (apparently to discuss then ongoing - but subsequently dropped - Article 258 TFEU infringement proceedings against the UK in relation to alleged protectionist measures impeding the sale of German beer on the British market) constituted a “data processing request”. Accordingly, the CJEU held, the provisions of Regulation (EC) 45/2001 on data protection applied in their entirety. The requirements of this regulation was said by the Court to justify the refusal by the Commission to redact the name of those attending who did not consent to their identities being publicly disclosed.
Legal professional privilege v. freedom of information
The confidentiality of legal advice from independent counsel
5.4 In AM & S Europe v Commission, following a comparative survey of the laws of the Member States, the Court of Justice concluded that the Commission’s extensive powers of investigation, search and seizure in the context of suspected breaches of EU fair competition law were subject to the principle that communications between lawyer and client were to be respected as confidential. The Commission could not therefore require the production of business records concerning such communications. The Court of Justice held, however, that the principle of confidentiality applied only in relation to communications with independent counsel rather than with in-house lawyers or legal departments.
5.5 In Ordre des barreaux francophones et germanophone v Council, the Court of Justice held that the obligation imposed on lawyers by Article 2a(5) of the Money Laundering Directive 91/308/EEC to inform the competent authorities of any fact which could be an indication of money laundering, was compatible with the right to a fair trial and with the principle of respect for the professional secrecy and the independence of lawyers.
The confidentiality of the Commission’s in-house legal advice
5.6 The principle of the confidentiality of in-house legal advice is one which, according to the CJEY, may be claimed in principle by the EU institutions. As the President of the General Court has observed:
According to settled case-law, it is contrary to public policy, which requires that the institutions should be able to receive the advice of their legal service, given in full independence, to allow such internal documents to be produced by persons other than the services at whose request they have been prepared in proceedings before the Court, unless their production has been authorised by the institution concerned or ordered by the Court (order in Case C 445/00 Austria v Council [2002] ECR I 9151, paragraph 12; Case T 44/97 Ghignone and Others v Council [2000] ECR SC I A 223 and II 1023, paragraph 48; and order in Case T 357/03 Gollnisch and Others v Parliament [2005] ECR II-1, paragraph 34).
5.7 The idea that fundamental rights protections may be prayed in aid by the EU institutions is certainly difficult to reconcile with the principle of ECHR jurisprudence to the effect that fundamental rights cannot be prayed in aid by public authorities or 'governmental organisations' which simply have no standing to make claims under Article 34 ECHR of a violation of Convention rights.
The non-confidentiality of in-house legal advice
5.8 The finding that the EU institutions can claim legal professional privilege in relation to their own in-house legal advice makes all the more startling the decision of the Grand Chamber of the CJEU to endorse and reiterate earlier rulings of the Court of Justice to the effect that whereas the in-house legal advice communicated within the EU institutions (which are quintessentially 'government organisations' for the purposes of the ECHR) is protected from disclosure by reason of those institutions' fundamental right to respect for the confidentiality of the legal advice received by them, legal professional privilege cannot be claimed by private enterprises under investigation by the Commission in respect of legal advice from, and internal communications with, their own in-house lawyers. In Akzo Nobel Chemicals Ltd v Commission the CJEU Grand Chamber notes:
47. ... [A]n in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence.
48. It must be added that, under the terms of his contract of employment, an in-house lawyer may be required to carry out other tasks, namely, as in the present case, the task of competition law coordinator, which may have an effect on the commercial policy of the undertaking. Such functions cannot but reinforce the close ties between the lawyer and his employer.
49. It follows, both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer.
50. Therefore, the General Court correctly applied the second condition for legal professional privilege laid down in the judgment in AM & S Europe v Commission.
Discovery and the right to access to EU documentation
5.9 In Zwartveld, the Court of Justice held that under EU law there was a presumption in favour of EU institutions producing documentation to national courts and authorising their officials to give evidence to national magistrates engaged in investigations into fraud. Any refusal to cooperate with national judicial authorities in this way must be justified by imperative reasons, for example the protection of the rights of third parties or where the disclosure of the information would be capable of interfering with the functioning and independence of the EU institutions.
5.10 Even before the enactment of Regulation (EC) 1049/2001 there may be said to have existed, as a matter of the CJEU’s jurisprudence, a presumptive right of access to EU documentation. In Baustahlgewebe the Court of Justice also accepted that the right of access to the Commission’s file was recognised as a general principle of EU law.
5.11 But in its decision in Sweden and Association de la Presse Internationale asbl (API) v Commission, the Grand Chamber seemed to set little store by the idea of compliance with the general principle of transparency in decision making – at least in the context of CJEU proceedings – as being in itself of overriding public interest. Thus the CJEU summarily dismissed 'mere claims' made by API to the effect that the public’s right to be informed about important issues of EU law – such as those concerning competition, and about issues which are of great political interest raised by infringement proceedings against Member States – should 'prevail over the protection of the court proceedings'. Instead, in the Grand Chamber’s view,
it is only where the particular circumstances of the case substantiate a finding that the principle of transparency is especially pressing that that principle can constitute an overriding public interest capable of prevailing over the need for protection of the disputed documents and, accordingly, capable of justifying their disclosure.
5.12 If an EU institution or body subject to the provisions of Regulation (EC) No 1049/2001 decides to refuse access to a requested document, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the Article 4 exceptions. However, the Grand Chamber has also ruled that the EU institution may, in refusing a specific document access request, base its decisions
on general presumptions which apply to certain categories of document, as considerations of a generally similar kind are likely to apply to applications for disclosure which relate to documents of the same nature.
5.13 The Grand Chamber in the same case appears to sets up a rather specious and spurious hierarchy of types of documents by which, it claims, it can grade the degree of public interest in having access to them. Documents relating to the legislative activities of an EU institution are said to be the most important. These are followed by documents relating to the administrative activities of the Commission, which are said to be being of less public importance in terms of public and open access. Lastly, documents relating to the 'the judicial activities of the Court' are said to be of the least interest and importance to the public, and hence access to these may be the more readily refused and such refusal the more easily justified. In any event, says the Grand Chamber, the provisions of Regulation (EC) No 1049/2001 simply do not apply to requests for court pleadings, as these are documents relating to the court’s judicial activities and Article 15(3) TFEU applies the duty of transparency and document access to the CJEU only when exercising 'administrative tasks' as opposed to its judicial functions, noting that
if third parties were able, on the basis of Regulation No 1049/2001, to obtain access to those pleadings, the system of procedural rules governing the court proceedings before the CJEU would be called into question….
5.14 In ruling that there is no public right of access to written pleadings before the CJEU, on the basis that it claims that judicial activities are excluded from the scope of the right of access to documents (and thereby also preserving the secrecy of the actual deliberations of the Court, as opposed to the composite unanimous non-dissenting judgments ultimately produced which pass for the reasons for – if not the reasoning behind – its decisions ) the Grand Chamber made a number of claims, avowedly by way of justification for its attributing to court pleadings a presumptively secret or confidential status, Many of these claims, from a UK court lawyer’s perspective, seem to be couched in extraordinary terms
77. ... [I]t should be noted that pleadings lodged before the Court of Justice in court proceedings are wholly specific since they are inherently more a part of the judicial activities of the Court than of the administrative activities of the Commission.
...
[79.] [J]udicial activities are as such excluded from the scope, established by those [EU] rules, of the right of access to documents
...
86. [I]f the content of the Commission’s pleadings were to be open to public debate, there would be a danger that the criticism levelled against them, whatever its actual legal significance, might influence the position defended by the Commission before the CJEUs.
...
92. As regards, secondly, the sound administration of justice, the exclusion of judicial activities from the scope of the right of access to documents, without any distinction being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity.
93. Disclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings.
94. It is therefore appropriate to allow a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings. (emphasis added)
5.15 It is difficult to see how this decision of the Grand Chamber of the Court of Justice in Sweden and Association de la Presse Internationale asbl (API), refusing general press and public access to the court pleadings lodged before the Court of Justice of the European Union, can, in the light of the developing jurisprudence of the European Court of Human Rights on a fundamental right of access to information, be said to be Convention compatible. That is perhaps one of the reasons behind the proposal that the EU should accede to the ECHR, the negotiation in respect of which are on-going. But that is definitely the topic for another lecture.
Matrix Chambers
Griffin Building
Gray’s Inn
London WC1R 5LN AIDAN O’NEILL QC