What did the German Chancellor say to the EU Commission to get this factory built on a nature reserve?

25 June 2012 by David Hart KC

IFAW Internationaler Tierschutz-Fonds GmbH; 21 June 2012, read judgment, on appeal from judgment of the General Court read judgment

I am in the middle of a series of posts about the way in which the EU institutions can be kept in check by individuals, including looking at challenges to EU measures (see my Inuit post) and the specifics of seeking an internal review of EU implementing Regulations via  the EU Aarhus Regulation 1367/2006  (see my post on the pesticides and air quality challenges). So it was a happy coincidence that last Thursday, the CJEU allowed an appeal in a case concerning documents sought by an NGO from the Commission. We are here in the territory of all EU institutions and all EU issues, not simply environmental questions arising under the Aarhus Convention, though, as we shall see, this is an environmental case.

The case concerned an application for information under the EU Regulation (EC) No 1049/2001 (Access to Information Regulation). This entitles applicants to disclosure of any information relating to the policies, activities and decisions by the EU Council, Parliament, and Commission which fall within the given EU’s institution’s sphere of responsibility. But 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 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 designated under Directive 92/43 (“the Habitats Directive”). 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. 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.

The German government 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 a Commission opinion in favour of declassification was issued.  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. And the simple question: why did the factory need to be there – was not really answered.

The applicant  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 Access to Information Regulation (because the member state refused disclosure of the 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 the Commission’s refusal, with Denmark, Sweden and Finland intervening. in support of the applicants. It was important to know all the reasons why the Commission approved the declassification of a site protected by the Natura 2000 scheme, not just those which Germany and the Commission would like the rest of the world to know.

They argued that, when a member state refuses disclosure, 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 the Commission had failed to do that, the refusal should be annulled. The Commission said 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 General Court agreed with the Commission. The applicant appealed to the CJEU.

The CJEU

The applicant put two arguments to the CJEU.

The first was that the Commission was required by the Regulation to carry out an exhaustive assessment of Germany’s reasons for refusing to release the Chancellor’s letter. The CJEU rejected this, as the General Court had done before. The Commission’s duty was to make sure the reasons existed and were provided to it which fell within Articles 4(1) to 4(3) of the Regulation. It does not have to go further than this.

The second argument however found favour with the CJEU. IFAW said that the General Court should have called for the Chancellor’s letter so that the Court could verify the existence and applicability of the exceptions relied upon by Germany. The CJEU agreed. It was in the Court’s jurisdiction and it was the Court’s duty to assess the lawfulness of the decision to refuse access in the specific case. The General Court should therefore be provided with the documents and consult them in camera. Only this way could effective judicial protection be afforded to the applicant without letting it see the confidential document which Germany had refused to be disclosed. The Court therefore set aside the decision of the General Court, and referred the case back to that Court so it could consider and assess the Chancellor’s letter, and then rule on IFAW’s claim to see it. So the question has ceased to become one solely about the reasonability of the Commission’s decision. The Court was going to decide for itself whether the reasons claimed by Germany for non-disclosure accorded with what the letter actually said.

As often, the Advocate-General’s opinion puts a little bit of flesh on the bones of the CJEU’s reasoning

64.      As judicial protection which is consistent with the content of the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, that protection comprises a material and substantive appraisal of the lawfulness of the contested act or measure, because crucially the Grand Chamber points out that, ultimately, the refusal decision is an act of the European Union, and therefore subject, in its entirety, to European Union law…..

66.      It follows that, contrary to the Commission’s claim, [as a result of the application of Article 4(5) of Regulation No 1049/2001,] the review carried out by the EU judicature is not limited to a prima faciereview. The application of that provision does not therefore prevent a complete review being carried out of the Commission’s refusal decision, which must, in particular, respect the obligation to give reasons and be based on the substantive assessment made by the Member State concerned of the applicability of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001.’

Comment

It seems to me that this is a sensible compromise. It accords with domestic practice in requests under freedom of information legislation and the Environment Information Regulations, in which the Information Commissioner and Tribunals are provided with the documents which the public authority wishes to withhold under the various exceptions under the legislation, so that an objective assessment of the reasons advanced, including whether the disclosure is in the public interest, can be carried out.  More importantly, it takes decisions as to disclosure away from the inevitably politicised Commission and gives it to the Court. This is particularly important where it is the original Commission decision to allow the development to proceed which is under scrutiny.

Only one more step (or possibly two if the General Court get it wrong again) in the disclosure argument, in a process which the NGO started in 2001 (sic).

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