ECJ rules on transparency – Thank you, Sophie in ’t Veld

The judgement in case Case T‑529/09 (Sophie in ’t Veld vs. Council of the European Union, Commission) is presented. That is huge for document access practitioners.

For document access requests most useful:

” Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying (see Sweden v MyTravel and Commission, paragraph 18 above, paragraph 76 and the case-law cited).”

I argued that several times in the past.

In that regard, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, whether there was no overriding public interest in disclosure. Further, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical (see Case T‑36/04 API v Commission [2007] ECR II‑3201, paragraph 54 and the case-law cited).

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