Commission able to withhold documents it shared with businesses from research group

The Court said that the EU equivalent of UK freedom of information laws did not apply to a case where the Commission had refused to disclose documents it had shared with trade associations involved with advising it on the formation of a free trade agreement with India.

Not-for-profit research group the Stichting Corporate Europe Observatory (SCEO) had argued that the disclosure to the business groups meant that the documents had already been made public and that therefore the Commission was wrong to claim that disclosure of the documents would undermine public interest as regards international relations.

Under EU law, EU citizens have a "right of access to documents" held by the European Commission, European Parliament and Council of Ministers, subject to some exceptions. The exceptions include where disclosure would undermine the public interest as regards privacy rights, public security or international relations, for example.

However, the General Court said that the Commission's sharing of documents with the trade associations on its advisory committee could not be said to amount to making the documents publically available. 

"The documents in question were provided, not by way of general information, but within the framework of a limited technical exchange and with the sole purpose of enabling all of the participants to fulfil their roles as advisers to the Commission, through the work of the advisory committee and of the working groups, on issues of obvious special interest to all of the private sector entities involved in that process of consultation, reflection and information exchange," the Court said.

"The circumstance upon which the applicant relies in support of its action, to the effect that the documents sought were sent to their recipients without deletion of any passages whatsoever, merely serves to emphasise the special nature of the position of the trade associations and companies involved," it said.

"In those circumstances, the Commission’s dissemination of the documents at issue cannot be regarded as having been intended to, and liable to, make those documents known to the public, that is to say, to an indeterminate group of persons, considered in general and in the abstract. Nor can the group of putative recipients of the documents requested, namely the members of the trade associations participating in the work of the advisory committee and of the working groups on market access, be treated as synonymous with the ‘public’," it added.

Among the other conclusions reached by the Court was that the way in which the Commission distributed the documents to the trade associations contradicted claims by the SCEO that it had made the documents public.

The Court further ruled that the Commission was objectively justified in treating SCEO differently from the business groups.

"The documents requested by the applicant were provided to trade associations and companies participating as experts in the work of the advisory committee and of its working groups on access to markets of a third State and for the sole purpose of enabling all of the participants to fulfil their roles as advisers to the Commission," the Court said. "[SCEO] lacks the abovementioned status, whatever the alleged importance of its role in international negotiations or its reliability as an organisation entered in the Commission’s interest group register."

"That objective difference in the respective situations explains and justifies the difference in treatment in relation to access to the documents at issue; accordingly, no infringement of the principle of equal treatment to the detriment of the applicant can be imputed to the Commission," it said.