Landmark ruling requires the European Commission to disclose impact assessments used as a basis for its legislative decision-making process.

The Grand Chamber of the Court of Justice of the European Union recently issued a landmark judgment finding that impact assessments should be considered public documents. This decision sets a legal precedent in connection with the transparency, accountability, and decision-making processes of European institutions.

Case Background

A non-profit organization active in the field of environment protection had sought to access two impact assessment reports, which had played an influential role in the proposals of certain environmental laws.

The European Commission refused both requests, pursuant to Regulation No 1049/2001 regarding public access to European Parliament, Council, and Commission documents. According to Article I, the purpose of the regulation is to:

• Define the principles, conditions, and limits governing the right of access to European Parliament, Council, and Commission documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents, on the grounds of public or private interest
• Establish rules ensuring the easiest possible exercise of this right
• Promote good administrative practice on access to documents

The Commission refused to grant access, indicating that the impact assessments were intended to help the Commission prepare legislative initiatives in the environmental field and that the disclosure of the documents requested could undermine the Commission’s decision-making processes. In particular, the disclosure of the impact assessments could affect the Commission’s margin of appreciation and reduce its ability to reach consensus on decisions. Furthermore, the Commission argued that such disclosure could lead to external pressures that could complicate the difficult decision-making processes, in which a climate of confidence must always prevail.

In response, the environmental non-profit organization brought an action before the General Court of the European Union with the aim of obtaining the annulment of the Commission’s refusal. The General Court of the European Union rejected the non-profit organization’s allegations in a 2015 judgment, confirming that the Commission had well-founded grounds for denying access to the requested documents, based on the need to safeguard the governing body’s space for reflection, its room for manoeuvre, and its independence. Furthermore, the judgment confirmed the need to ensure a climate of trust during discussions, as well as to counteract the risk of external pressures arising that may affect the development of discussions and ongoing negotiations.

Therefore, the General Court of the European Union concluded that the Commission had acted correctly by applying Article 4.3 of Regulation nº 1049/2001, which stipulates: “Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.”

On the basis of the foregoing, the non-profit organization filed a judicial review in 2016 requesting the annulment of the 2015 decision and invoking the existence of an overriding public interest that justified the disclosure of the controversial documents.

Ruling

On September 4, 2018, the General Court issued a judgement stating the following:

• Impact assessments are linked to the EU legislative process and should be available for the public as soon as they are carried out.
• The legislative initiative of the European Commission must guarantee transparency during the decision-making process to ensure the credibility and accountability of the European institutions.
• The disclosure of risk assessments does not necessarily provoke third parties to increasingly pressure a European institution to take a particular position. Furthermore, the possibility of increased external pressure on a European institution to assume a certain stance does not mean that the Commission cannot act in a fully independent manner and exclusively in the general interest.

Implications

The European Court of Justice’s ruling will probably provoke more action from EU citizens to combat climate change, given the focus of the impact assessments — which implies the EU has boosted its commitment to protecting the environment. Consequently, this judicial decision appears to signal a significant victory for the participative democracy of the European Union beyond its immediate legal effects.