Can you ask for what you already have? GC tightens access to documents of EU institutions (T-221/08)

©European Commission.

©European Commission.

In its Judgment of 26 April 2016 in case Strack v Commission, T-221/08, EU:T:2016:242 (not available in English, not even the official extracts) the General Court (GC) of the Court of Justice of the European Union decided some interesting practical issues related to the rules on access access to European Parliament, Council and Commission documents under Regulation 1049/2001. The point I consider most interesting is whether documents to which the claimant has had previous access by means other than the rights provided by Reg 1049/2001 can be excluded from an access request. Or, in other words, whether Reg 1049/2001 allows you to ask for what you already have.

This point is important because different "access routes" to the documents imply different uses for those documents, particularly if the applicant intends to reveal them to third parties or to the general public. As the applicant in the case submitted to the court,

Only a transmission on the basis of [Reg 1049/2001] would make the document automatically available to third parties and would enable the applicant to achieve his goal, that is, to provide the public, in a fully legally-compliant form, with information on how his complaint was handled by OLAF (T-221/08, para 124, own translation from French).

In the case at hand, the applicant required access to voluminous documentation held by OLAF. Among those documents were correspondence between OLAF and the applicant and OLAF and a mediator, which had previously been disclosed to the applicant (in the course of that correspondence or in relation to mediation efforts). OLAF excluded those documents from the request for access on the basis that they were previously disclosed (PD documents). The applicant challenged this exclusion from his request.

Interestingly, the GC deals with this issue in a rather comprehensive manner and determines that

128 The purpose of Regulation 1049/2001 is to ensure that documents of the institutions are accessible to the general public ... and ... a document disclosed under that regulation document enters the public domain.

129 This result is also reflected in Article 9, paragraph 2, point e) of the annex to the Rules of Procedure of the Commission on the provisions relating to the application of Regulation 1049/2001 ... under which documents already disclosed in response to a previous [Reg 1049/2001] request will be "automatically" provided on [further] request.

130 It is true that ... in the case Miettinen v Council (T-303/13, EU:T:2014:48, paragraphs 17 to 19) the Court stated that, since the applicant was granted access to the requested document, it had obtained the only result that its action could provide. However, contrary to what happens in this case, in the Miettinen v Council case ... the requested document had been released to the public, so it can not be inferred from that decision that the mere fact that the person concerned had had access to the document requested for any reason would prevent her, in every case, to request access to the same document on the basis of Regulation no 1049/2001, when such document has not been disclosed to the public.

131 It is therefore apparent that the first decision of OLAF, insofar as it refused the applicant access to [PD documents] on the basis of Regulation no 1049/2001, prevents those documents being considered public, which is precisely what the applicant claims and which corresponds to the objective pursued by Regulation 1049/2001, which is to grant the widest possible access to documents with a view to greater openness, to ensure greater participation of citizens in the process of decision making, and greater legitimacy, effectiveness and accountability of government to citizens in a democratic system ...

132 Consequently, the fact that the applicant already had the documents concerned by his request for access and that the objective of the latter was not, therefore, to give him access to their content but rather to disclose them to third parties is indifferent, especially because the reasons for applicant's decision to submit such a request are irrelevant, since Regulation 1049/2001 does not require that the person concerned motivates her request for access to documents, and the reasons for such a request cannot have any impact on its admission or refusal ... (T-221/08, paras 128 to 132, references omitted, own translation from Spanish and emphasis added).

This is quite an important clarification because, in my view, it will force European Institutions to tighten their procedures under Reg 1049/2001 and always assess access to documents requests on their merits. Importantly as well, the Judgment comes to clarify in very strong terms that documents disclosed under Reg 1049/2001 enter the public domain and, consequently, there can be no restrictions on their further use by the applicant or any third parties.

In the area of public procurement, this means that the European Institutions, when they act as contracting authorities, need to be particularly careful in the way they assess requests that concern documents which can impact on the commercial interests of economic operators, including intellectual property, which once made available will become part of the public domain--and may need to start (re)considering ways in which to ensure appropriate protection of business secrets along the lines of the standards created by the new Directive on trade secrets, even if it will not be directly applicable. Once again, this is linked to the issue of the level of transparency in public procurement and the need to seek a difficult balance between transparency and competition in procurement processes, and a more market-oriented approach such as that emerging in the UK may be a good example to take into consideration.