ECJ: Commission has to enable access to written submissions

Written by Ingo Beckendorf* and originally published by ECPMF

The Commission may not automatically refuse the access to written submissions of the Member States in a lawsuit in the European Court of Justice (ECJ), with the reason that the written submissions are documents of the court. This was ruled by the ECJ by decision on 27 February 2015 (case no.T-188/12).

In the above mentioned case, Patrick Breyer, a deputy of the German Pirate Party in the Landtag made a request, in March 2011, to the Commission. He wanted to get access to written submissions that Austria had tendered to the ECJ during an infringement proceeding. The proceeding was initiated by the Commission against a Member State. The reason was that the Member State had not implemented the Data Protection Directive. The ECJ finished the proceeding by verdict (reference C-189/09).

The Commission refused access to these written submissions, which it has copies of. The Commission justified its decision with the argument that the documents are not part of the material scope of the decree (EG) Nr. 1049/2001. This decree oversees the access of the public to documents of the European Parliament, Council and Commission. The Commission argued that the documents are documents of the ECJ and not documents of the Commission, because the documents were submitted by Austria to the ECJ, and only copies of those documents were send to the Commission. Being against the refusal decision, the member of the Pirate Party filed a lawsuit for nullification of the Commission’s decision. Finland and Sweden joined the action.

With their verdict, the judges agreed with the plaintiff’s opinion and nullified the decision of the Commission. As a result, the ECJ stated that the written submissions are not excluded from the material scope of the decree (EG) Nr. 1049/2001. Indeed, the decree names a carve-out of the access to documents, if their circulation would harm the progress of a lawsuit. But that does not include documents which are made for a proceeding in the ECJ. To those written submissions, the Pirate Party member can get access to, even when they are part of the judicial activity of the ECJ.

However, during the proceedings, the plaintiff published the Commission’s statement of defense on his website, as well as the following letter of the Commission requesting him to take the statement of defense down from his website. The court declared that the publication of both these documents was a breach of the law. As a consequence, the deputy had to pay half of the court costs, although the judges had allowed the action.

*Ingo Beckendorf works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.

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The decision can be found online in German here .