The Secret Letter: Commission bows to government paranoia

18 January 2011 by Rosalind English

IFAW Internationaler Tierschutz-Fonds gGmbH; read judgment

EU law is replete with the soaring rhetoric of rights and transparency. Indeed the very first Article of the Treaty on European Union states that ‘decisions are taken as openly as possible and as closely as possible to the citizen’ . But not, it appears, when the decision concerns the balance between short-term economic interests and those of the environment – or, in the Commission’s own words, the “Community’s natural heritage”.

Key facts and figures relating to central policy remain firmly under lock and key in the EU, as NGOs find when they try to get the Commission to enforce the various Directives against national governments and the EU institutions themselves.

This case concerned an application for information under Regulation (EC) No 1049/2001 (Access to Information Regulation). This regulation entitles applicants to disclosure of any information relating to the policies, activities and decisions falling within the institution’s sphere of responsibility. But this access can be denied under Article 4 of the Regulation for a range of reasons, including economic interests, public security, international relations or “if disclosure of the document would seriously undermine the institution’s decision-making process.”

The applicants were seeking in effect to reverse the approval, by the Commission, of the German government’s decision to declassify an area surrounding the Mühlenberger Loch on the Elbe in Hamburg. The authorities wanted to press ahead with the expansion of a factory for the purposes of the final assembly of Airbus A3XX in the zone, which is protected by  Directive 92/43 (“the Habitats Directive”). Article 6(4) of  the Habitats Directive imposes a duty on member states to offset the negative impact of a project and to provide compensation corresponding precisely to the negative effects on the species or habitat concerned .  In addition, where the protected site – such as this one – hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest. Private economic interests play no part, theoretically.

Despite the high level of protection accorded to such sites, the German government successfully persuaded the Commission that the competitiveness of the European aerospace industry, advantages for Hamburg and Northern Germany, the creation of new jobs and technological advance were all such “imperative reasons” and an opinion in favour of declassification was duly issued, despite the fact that no evidence was put forward for destroying the priority habitat rather than realising the project at another place.  In reality the reasons of cost effectiveness and functional requirements advanced by the Airbus Company amounted to pure private economic interests, and it was not at all obvious from the information available why they constituted either “overriding”, “public” or “imperative” reasons for the purposes of the Directive.

The applicant  NGO wrote to the Commission requesting access to various documents received by the Commission in connection with the examination of the industrial project. Access was denied on the basis of Article 4(5) of the Regulation (member state refuses disclosure of those documents which originate from it). Subsequent attempts to annul this decision to refuse disclosure were successful (Case C-64/05 Sweden v Commission [2007] ECR I-11389) and subsequently some of the documents were disclosed. The German authorities insisted however that the disclosure of one document, a letter from the German Chancellor to the President of the Commission, would undermine the  “protection of national interest as regards international relations and economic policy” within Article 4(1) (a) of the Regulation and  that it would also seriously undermine the protection of the Commission’s decision-making process within the meaning of Article 4(3) of the Regulation.

The applicants sought to annul this decision by the Commission, with Denmark, Sweden and Finland intervening. in support of the applicants
They claimed  that it was important to know all the reasons why the Commission approved the declassification of a nature reserve protected by the Natura 2000 scheme. The Commission had previously shown itself to be very reluctant to approve the declassification so it was remarkable how its approval was forthcoming such “a short time” after receiving the German Chancellor’s letter.

They submitted that, when a member state refuses disclosure by appealing to the Regulation’s exceptions section, the Commission must examine whether the reasons adduced by the Member State are sufficient, and if not, it should grant the access to the document requested. Since, in the present case, the Commission failed to fulfil that obligation, the contested decision should be annulled.

The Commission’s position was that when the dispute over disclosure concerned a document which originates, not from the institution concerned, but from a third party,  the Commission’s review is limited to checking that the objective is prima facie based on the exceptions provided for by the Regulation.

The ECJ’s ruling

The ECJ rejected all the applicants’ arguments. It concluded that the assessment of the question whether disclosure of a document can be avoided was, essentially, a matter for the Member State in question.  It followed, in the view the Court, that judicial review of the legality of such a decision must be limited to verifying whether the procedural rules under the Regulation and the duty to state reasons have been complied with. As for the adequacy of the reasons under attack here, the ECJ observed that it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its very purpose .

Comment

It is hard to put anything other than a cynical interpretation on this ruling. The letter  at the centre of the dispute “contained a confidential statement drawn up exclusively for internal use”.  That may well be, but this document must have contained details of the German Chancellor’s opinion about the importance of the German aeronautics industry, which constituted “imperative reasons of overriding public interests” justifying the declassification of the site so that the project could go ahead. The very fact that the letter would have contained such information goes to the heart of the Habitat Directive and its effectiveness, so it is hard to see why it had to be protected so zealously from public scrutiny.

Former DG Commissioner Ludwig Kramer has undertaken a thoroughgoing survey of these Commission opinions issued in response to governments requesting approval to declassify priority zones. The resulting article, published in the 2009 Journal of Environmental Law, illustrates a pro-government approach which does the Commission no credit at all. And surprisingly, there is to date no ECJ decision that defines the term of “imperative reasons of overriding public interest” within Article 6(4).  Kramer reminds us that this formula emphatically does not cover projects “that lie entirely in the interests of companies or individuals”.  One of the main objectives of the Habitats Directive was to preserve the interests of conservation against the aims of realising some industrial some plan or project. For this very reason, a public interest could only be “overriding” when it was a long-term interest; short-term economic interests could not justify an impairment of a habitat.

Swatting away the intrusions of NGOs like the applicant in question as if it were some sort of irritating gadfly is not the Commission’s job, even less so that of the ECJ. These institutions are heavily reliant on the non publicly-funded activities of nature protection organisations such as this one to provide them with research and data from professional activities that are essential to protect the quality and endurance of the natural environment.

The discussion on the proposed impairment of a protected habitat was not one which could be carried on behind closed doors, in any sense; as Kramer says, such an approach

only favours lobbyism, mental corruption and decisions which are, in the long term, neither good for the environment nor for society as such.

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