EU: ...unless there is an overriding public interest

BRUXELLES - 10 / 9 / 2009 - Interesting judgement on the way testing the exception of ongoing investigations in the EU wob.

By Brigitte Alfter

Currently the EU has one of the more modern freedom of information acts in the world. A law that can be improved, of course, but a strong law all right.

Yet it is still young. Regulation 1049/01 – and do remember the warm tone in your voice when saying so, because it is such a strong right to the citizens – the regulation is not yet eight years old. That means that neither all journalists and citizens nor all officials truly have adjusted to the new situation yet.

Here the European Court of Justice plays a crucial role by establishing binding case law. And this week another case has gone one step further as the General Advocat of the European Court of Justice has published her opinion. These opinions are often wholly or partially followed by the judges and thus a good indicator.

And the opinion by General Advocat Juliane Kokott , is encouraging – if you like openness. 

The core of the case among nerds would be called a case “about exemption 4.2” or about “the ongoing investigations exemption” - all referring of course to the EU regulation 1049/01 on access to documents. 

Transparency is limited by this exception, because publication may not disturb ongoing investigations, inspections and audits. Fair enough. None of the good guys in a crime story would ever tell the bad guys, that the police is on the way, so the bad guys can clean up whatever needs to be cleaned up.  

However there must be a balance between the need to protect administrative cases and the interest of the public in knowing, what’s going on. This is what the current case is about.

In this case the Commission denied access to the documents pointing at exemption 4.2 about an ongoing investigation.

The case was about state aid to a glas producer in Eastern Germany, the Technische Glaswerke Ilmenau. Germany had notified the Commission that it wanted to grant public aid in a project back in 1998, the Commission started its investigations in 2000 and 2001.

In 2001 TG Ilmenau wanted to see the documents on the cases held by the Commission, did not get them and turned to the Court – supported by Finland and Sweden, as so often the case in pro-transparency cases.

The European Court of First Instance supported TG Ilmenau. In the summary of the judgement it basically told the Commission, that it was too easy to just deny access referring to this being an ongoing case:

The mere fact that a document referred to in an application for access (…) concerns an interest protected by an exception cannot justify application of that exception.

Bitten by the transparency bug? Then do read the entire summary of the judgement of 30.12.06, it’s not terribly nerdy and a strong document.

Also it obliges the Commission to cross-check for every single requested document, whether there is not an “overriding public interest” in granting access. To use the exceptions can only be justified, “if the institution has previously assessed (…) whether there was no overriding public interest in disclosure.”

The Commission did not like this judgement and complaint to the European Court of Justice. A very important step, as we need case law, so it gets more clear and thus more smooth to use the regulation about openness. At this level Denmark has stepped in on the side of TG Ilmenau – another country, that has a good tradition of stepping in on the side of those, who want more openness.

Right now the case has almost reached the top. Tuesday's opinion of the General Advocat now indicates a direction. And very shortly she confirms the judgement by the Court of First Instance – rejecting all points that the Commission made.

It will thus be a very interesting judgement, as questions like the “overriding public interest” will be tested as well as - most importantly - wether an exception, that is supposed to protect in this case the investigation, can be used without cross-checking, whether any damage actually is likely.