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Commission v. API

Case number:
C-514/07 P, C-528/07 P and C-532/07 P
European Union
Date of decision:
21 September 2010
Court / Arbiter:
Court of Justice (Grand Chamber); unreviewable ( International / EU )

Relevant law :
Regulation (EC) No 1049/2001 of the European Parliament and of the Council Regarding Public Access to European Parliament, Council and Commission Documents, Article 4(2) (protection of commercial interests, the purpose of inspections, investigations and audits and legal advice) ( ATI Law )


EU institutions may rely on a general presumption that disclosure of pleadings provided by them in cases before the European courts would undermine the purpose of court proceedings. Under that presumption, access can be refused without an individualized assessment of the documents. However, the presumption no longer exists once a case has been closed, and a similar presumption relating to interference with investigations and audits is also inappropriate after judgment has been delivered in infringement proceedings. The onus for proving overriding public interest in disclosure is on the party requesting disclosure.

Burden of proof (including requests for additional evidence)
Court papers (including case files, court orders)
International institutions
International law
Law enforcement / Administration of justice (including prevention/investigation/prosecution of crime, due process)
Public interest (including public interest override, information of public interest)
RTI law

Case details:


Association de la Presse Internationale (API), a non-profit organization of journalists, applied to the Commission for access to the written pleadings lodged by the Commission before the European Court of Justice (ECJ) in a number of cases (para. 9). The Commission refused access to most cases, citing exemptions in Article 4(2) of the Regulation, in particular, as it was related to the infringement proceedings, the protection of court proceedings and the protection of the purpose of investigations (paras. 12-15). According to Article 258 of the Treaty on the Functioning of the European Union, the Commission initiates infringement proceedings against member states failing to comply with EU law. In the first stage, the Commission delivers a “reasoned opinion on the matter after giving the state concerned the opportunity to submit its observations. If the state concerned does not comply […], the [Commission] may bring the matter before the [ECJ]”.

The Commission also found that there was insufficient public interest in overriding the exceptions (para. 16).

The Commission based its decision on a general presumption that disclosing the pleadings would undermine court proceedings and did not carry out a specific assessment of each document (para. 76).


Based on prior case law, the Court found that an institution can sometimes refuse access to a document based on a general presumption that applies to a certain category of documents (para. 74). The Court highlighted that pleadings are inherently more related to its own judicial activities than to the Commission’s administrative activities (para. 77).  Further, it found that a purpose of the Regulation was to exclude judicial activities from the right of access to documents and that the Court of Justice itself is not subject to the transparency obligations of the Regulation (paras. 79-83).

The Court stressed that allowing access to pleadings by the Commission could influence the defence of its position before the court and would undermine the principle of equality, as non-institutional parties would not be subject to a similar obligation to disclose (para. 86-87). Additionally, exposing pleadings to public debate could disrupt the serenity of judicial proceedings and expose them to external pressure (para. 92-93). Furthermore, disclosing the pleadings would undermine the rules of procedure of EU courts, which generally only entitle parties to a dispute to receive communication of procedural documents (paras. 96-99).

Taking into consideration all of the above, the Court allowed for a general presumption that disclosure of such pleadings by European institutions would undermine judicial proceedings, allowing for non-disclosure under Article 4(2) (para. 94). It held that such disclosure would “flout the special nature of that category of documents and would be tantamount to making a significant part of the court proceedings subject to the principle of transparency. As a consequence, the effectiveness of the exclusion of the Court of Justice from the institutions to which the principle of transparency applies, […], would be largely frustrated” (para.95).

The Court found that the general presumption that pleadings undermine court proceedings no longer exists after the proceedings in question have been closed (para. 130). While disclosure in these cases could potentially undermine other proceedings, that risk depends on the similarity between the two cases. Partial disclosure may therefore be possible, necessitating a specific examination of the documents (paras. 132-34).

The Court also addressed the issue of the exception under Article 4(2) relating to the protection of the purpose of inspections, investigations and audits. The Court found that the Commission could not continue to rely on a presumption regarding interference with the procedures after the judgment had been delivered in infringement proceedings (para. 122). Since an amicable settlement between the parties was no longer possible post-judgment (although future proceedings could take place), an individualized examination of these documents was required (para. 122).

Finally, the Court found that there was no need to examine the content of the documents to decide if overriding public interest in disclosure existed. It noted that it is only in case the particular circumstances of the case substantiate a finding that disclosure is especially pressing that public interest can override the protection of the documents (para. 156). Since API had not demonstrated such a pressing need, there was no appropriate basis for establishing that public interest was capable of prevailing over the reasons justifying non-disclosure (paras. 157-158).


Judgment of the Court.