On 3 December 2008, Access Info Europe applied to the Council under Regulation No 1049/2001 for access to a document concerning the proposal for a regulation of the European Parliament and of the Council regarding public access to documents (para. 6). The Council granted access to the policy proposals in the document, but withheld the portions identifying which Member State had submitted each proposal (para. 7).
The Council argued that disclosure of Member State delegations would seriously undermine the decision-making process and that there was no overriding public interest in disclosure invoking the Article 4(3) exception to Regulation No 1049/2001 (para. 7).
Further, the Council declared in a letter sent 26 February 2009 that disclosure of the delegations would diminish the efficiency of the Council’s decision-making process by impairing the Council’s ability to compromise and disincentivizing delegations from submitting written views (para. 9-10). Access Info Europe declared that it did not receive this letter until 3 April 2009, when it received an email version (para 10). Subsequently, Access Info applied to the European Court of Justice on 3 June 2009, within the 2-month (plus 10 days for distance) time limit, as provided for under Article 230 EC and Article 102(2), of its email notification, but outside the limit based on the letter sent, but not received, in February (para. 11-12, 23-24).
Since the Council could not present evidence that Access Info Europe had received notification of the decision before 3 April 2009, the Court ruled that the time limit for bringing the appeal had not expired (para. 27). The Court found that, though access to the requested document became available through other channels, Access Info still had an interest in its application to have the Council’s decision annulled (para. 34).
The Court noted that all exceptions in Article 4 of Regulation No. 1049/2001 must be strictly applied because the public right of access to documents is connected to the democratic nature of institutions and the purpose of the regulation is to give access to information (para 55). Thus, the Court considered whether, for the reasons invoked by the Council, the disclosure at a time when the Council had not yet taken a decision of information relating to the identity of those who made proposals described in the requested document would seriously undermine the Council’s decision-making process. The Court found that the Council did not establish the requisite legal and factual standard in invoking the exception (paras. 65-66). That is, any proposal for amendment of a draft regulation can be subjected to positive and negative comments by the public, and the risk that delegations would refrain from submitting written proposals does not sufficiently undermine the decision-making process to justify the refusal of access to the requested document (paras. 78, 81). The Court found the Council’s arguments too abstract and unsubstantiated (para. 83).
Judgment of the Court.