Court of Justice of the European Union and regulatory politics: public access to Impact Assessment

The paper investigates the implications of the recent judgement of the General Court (Cases T-424/15 and T-425/14, ClientEarth v Commission) on access to documents obtained and/or elaborated by the Commission during the process of impact assessment. The ruling established that the Commission is entitled not to disclose to private parties such documents during the impact assessment procedures on the grounds that such disclosure would seriously undermine its decision-making process. On the basis of the arguments and precedents relied on by the General Court, the paper examines such implications both from an institutional and governance perspective. From an institutional perspective, the paper argues that the General Court consolidated the prominent role of the Commission in the initial stage of EU policy-making by controversially denying its legislative capacity. It also reiterated a power-sharing in the determination of the exceptions to disclosure of documents between the Commission and the CJEU, whereby the former gives an input for the establishment of such exceptions and the latter recognises and monitors such power. From a governance perspective, on the basis of the different goals that the Commission may pursue through an impact assessment, the paper argues that the judgement has reduced the goal of transparency and stakeholders’ participation, but it has enhanced the strategic use that the Commission make of the impact assessment in the negotiation with the European Parliament and the Council in order to forward its policy proposals.