Court of Justice and Protection of the Commission’s Decision-making Process: Recent Cases and Institutional Implications

The paper examines a stream of recent judgements of the Court of Justice of the European Union (General Court and Court of Justice), which concerned the application of Regulation 1049/2001 on public access to documents of European institutions (Case T-245/11 ClientEarth v ECHA, Case 615/13 ClientEarth v EFSA, Case T-18/15, Philip Morris v Commission, Case T-796/14 Philip Morris v Commission, Case T-800/14 Philip Morris v Commission, Case T-424, 425/14 ClientEarth v Commission). These cases originated from challenges to some Commission’s decisions which had rejected private parties’ applications to access to documents adopted during legislative preparatory works, or European agencies’ decisions which had rejected private parties’ applications to access to documents relating to its internal decision-making process. The paper focuses on the main exception that justifies refusal of disclosure: the protection of decision-making process of an EU institution (Article 4(3) of Regulation 1049/2001). In particular, it examines in what stages of the policy-making process, and in relation to what documents, the Commission relied on the need to preserve the integrity of its decision-making process to deny disclosure of the documents requested. In addition, it critically examines the arguments of the Court of Justice to uphold, and sometimes partially reject, the Commission’s decisions refusing to grant access to its documents. The paper is structured as follows. First, from a legal perspective, the paper shows how the case-law has struck the balance between transparency and effectiveness of the Commission decision-making process. In addition, it considers whether the above-mentioned case-law is consistent with the 2015 Commission’s Better Regulation agenda. It also examines whether the Court of Justice differentiates the degree of protection from disclosure depending on the type of document whose access is requested by private applicants. Second, by drawing upon literature on impact assessment and interest groups in the EU, the paper appraises whether the Court of Justice struck an optimal balance between transparency and protection of the Commission’s decision-making process. Third, it considers the institutional implications of the above cases, in terms of: a) strengthening the Commission prominent role in the initial stage of the policy-making and its discretion on how to manage expertise and other informational inputs when preparing a legislative proposal; and b) whether the Court of Justice has an active, rather than passive, role when deciding on how to balance transparency and effectiveness of the Commission’s decision-making process.