The Principles of Transparency and Openness, and Access to Documents

Polley, Romina; Clifton, Michael-James

doi:10.1007/978-3-319-24343-6_29

The Principles of Transparency and Openness, and Access to Documents

Romina Polley² &
Michael-James Clifton³

Chapter
First Online: 12 December 2015

1319 Accesses
2 Citations

Abstract

This chapter addresses the principles of transparency and openness and focusses on the prime application of these principles in the EEA which is access to documents. It seeks to provide the practitioner with an initial ready-reference guide to the regimes in place, including Regulation 1049/2001, but with emphasis on ESA’s Rules on Access to Documents 2012 (RAD 2012). The chapter also considers the transparency of the Court of Justice of the European Union and the EFTA Court, focussing on their archives, and also gives ideas on potential future developments in this fast-developing area of law.

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Notes

1.
Bugaric (2004), pp. 487 et seq.
2.
Bugaric (2004), p. 487; Alemanno and Stefan, pp. 97–139.
3.
Baudenbacher and Clifton (2014), pp. 5–6.
4.
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43 (‘Regulation 1049/2001’).
5.
EFTA Surveillance Authority Decision No 300/12/COL of 5 September 2012 to adopt revised Rules on public access to documents, and repealing Decision 407/08/COL (‘RAD 2012 ’).
6.
Baudenbacher and Clifton (2014), p. 5. Although Chydenius wrote that his inspiration for freedom of information actually came from China, from the information policy of Taizong (627–649), the enlightened Tang dynasty emperor: see Luoma (2006).
7.
Al-Rodhan (2007).
8.
Case C-280/11 P Council v. Access Info Europe, judgment of 17 October 2013, not yet reported. The case concerned the granting of partial access to a note from the Council General Secretariat on the proposals submitted in the course of the legislative process for the revision of Regulation No 1049/2001 (ironically enough). The names of the Member States concerned had been removed. The Council’s decision was annulled by the General Court in Case T-233/09, Access Info Europe v. Council [2011] ECR II-1073. The Council’s appeal before the ECJ was dismissed.
9.
European Ombudsman’s letter (2014), paragraph 2.
10.
Case T-529/09 in’t Veld v. Council, [2012] published electronically.
11.
Case C-350/12 P Council v. in’t Veld judgment of 3 July 2014, not yet reported.
12.
Case C-350/12 P Council v. in’t Veld, cited above, paragraph 59. Interestingly, ESA makes public the ‘ordinary minutes’ of its College meetings pursuant to Article 9(3) RAD 2012.
13.
See point Sect. 6.2 below.
14.
Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union OJ L 349, 5.12.2014, p. 1.
15.
Article 6(2) of the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (‘Damages Directive’ ). Further assessment of the Damages Directive may be found below at Sect. 6.3.
16.
It must be noted that Article 6(2) of the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union provides that ‘[t]his Chapter is without prejudice to the rules and practices on public access to documents under Regulation 1049/2001.’
17.
Joint declaration relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 173, 27.6.2001, p. 5).
18.
Baudenbacher and Clifton (2014), p. 5.
19.
A frequently overlooked point is that the Charter of Fundamental Rights of the European Union provides in Article 41 for a right to good administration , with Article 42 providing for a right of access to documents . The impact, if any, of these Charter provisions has not been assessed in the jurisprudence. While the Charter is not a part of EEA law, it has been acknowledged by the Court (see, for example Case E-15/10 Posten Norge v. ESA [2012] EFTA Ct. Rep. 246, paragraph 86).
20.
Decision of the EFTA Council No. 6 of 2007 (as amended) on Public Access to EFTA Documents.
21.
Decision of the Standing Committee of the EFTA States No. 3/2007/SC of 6 December 2007 on public access to EFTA documents and repealing Decision No. 3/2005/SC of the Standing Committee of the EFTA States.
22.
Prior to this ESA had ‘Information Guidelines’ which noted that it ‘pursues an information policy characterised by the widest possible openness and transparency.’
23.
The RAD 2012 can be found at: http://www.eftasurv.int/media/decisions/College_Decision_300-12-COL.pdf (last accessed 31 October 2014).
24.
Case E-5/13 DB Schenker v. EFTA Surveillance Authority (‘DB Schenker V’), judgment of 7 July 2014, not yet reported, paragraphs 62 to 67.
25.
Case E-14/11 DB Schenker v. EFTA Surveillance Authority (‘DB Schenker I’) [2012] EFTA Ct. Rep 1178, paragraphs 118 and 121.
26.
See inter alia, see Case E-18/11 Irish Bank Resolution Corporation v. Kaupthing Bank, [2012] EFTA Ct. Rep. 592, paragraph 122.
27.
Pursuant to recital 2 in the preamble to the RAD 2012, the purpose of these rules is to ensure openness and transparency while still showing due concern for the limitations necessary to the protection of professional secrecy, legal proceedings and internal deliberations, where this is deemed necessary in order to safeguard ESA’s ability to carry out its tasks (see Case E-5/13, DB Schenker V, cited above, paragraph 67).
28.
See Case E-14/11, DB Schenker I, cited above, paragraphs 77 to 78.
29.
See Case E-5/13, DB Schenker V, cited above, paragraph 62.
30.
Article 13 RAD 2012.
31.
Case E-5/13 DB Schenker V, cited above, paragraphs 64 and 65, and case-law cited.
32.
Case E-5/13 DB Schenker V, cited above, paragraph 66, and case-law cited.
33.
Just as in the EU. Here though the provisions may be found in Protocol 4 SCA for competition proceedings and Protocol 3 SCA for State aid.
34.
Article 2(1) Regulation 1049/2001. Although, Article 2(2) Regulation 1049/2001 does provide that ‘[t]he institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.’
35.
See below at Sect. 4.2 for further details on what is to be understood by the term ‘document .’
36.
Article 2(3) RAD 2012.
37.
Article 2(4) RAD 2012.
38.

‘This Regulation shall be without prejudice to rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them.’
39.
Article 3(a) RAD 2012. This provision is now narrower than that defined in Article 3(a) RAD 2008 and Article 3(a) Regulation 1049/2001 which are essentially identical.
40.
Case E-5/13, DB Schenker V, cited above, paragraph 75.
41.
Case E-5/13, DB Schenker V, cited above, paragraph 75, and citing EFTA Court, Joined Cases E-4/12 and E-5/12 Risdal Touring AS, Konkurrenten no AS v. ESA [2013] EFTA Ct. Rep. 668, paragraph 130.
42.
Case E-5/13, DB Schenker V, cited above, paragraph 75.
43.
Case E-5/13, DB Schenker V, cited above, paragraph 83.
44.
registry@eftasurv.int.
45.
EFTA Surveillance Authority Registry, Rue Belliard 35, B-1040 Brussels, Belgium.
46.
Article 7(2) RAD 2012.
47.
Article 6(1) RAD 2012.
48.
One of the languages referred to in Article 129 EEA and Article 20 SCA, i.e. Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Icelandic, Italian, Latvian, Lithuanian, Maltese, Norwegian, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.
49.
Article 11 RAD 2012.
50.
Article 9(1) RAD 2012.
51.
Article 9(2) RAD 2012. Although references shall be made in a manner which does not undermine protection of the interests in Article 4 RAD 2012, see Sect. 4.6 below for an assessment of the exceptions .
52.
Article 6(1) RAD 2012.
53.
Article 6(2) RAD 2012.
54.
Article 6(3) RAD 2012.
55.
Article 6(3) RAD 2012.
56.
Article 6(3) RAD 2012.
57.
Article 6(3) RAD 2012.
58.
Article 6(1) RAD 2012.
59.
Compare, Order of the Court of 12 May 2014, in Case E-8/12 DB Schenker III, [2014] EFTA Ct. Rep. 148, paragraph 165.
60.
Compare, Order of the Court in Case E-8/12 DB Schenker III, cited above, paragraph 167.
61.
Article 7(2) RAD 2012.
62.
Article 7(2) RAD 2012.
63.
Article 7(3) RAD 2012.
64.
Article 7(3) RAD 2012.
65.
In Case E-14/11 DB Schenker I, ESA claimed that the 352 documents at issue in that case which amounted to around 2800 pages, were a ‘very large number’. However, the Court rejected ESA’s argument on this point noting that the documents at issue amounted to only ‘three ring binders of material’. See Case E-14/11, DB Schenker I, cited above, paragraphs 269 and 270.
66.
Article 7(4) RAD 2012.
67.
Article 7(4) RAD 2012.
68.
I.e. public security, defence and military matters, international relations, the financial, monetary or economic policy of an EEA State (Article 4(3)(a) RAD 2012).
69.
In particular in accordance with EEA legislation regarding the protection of personal data (Article 4(3)(b) RAD 2012). It should be noted that at present there is no EEA legislation regarding the protection of personal data.
70.
Article 4(4) RAD 2012.
71.
Article 4(8) RAD 2012.
72.
Article 7(2) RAD 2012.
73.
Case E-5/13, DB Schenker V, cited above, paragraph 95.
74.
Article 7(6) RAD 2012.
75.
Case E-5/13, DB Schenker V, cited above, paragraph 95.
76.
Article 7(6) RAD 2012.
77.
Article 7(6) RAD 2012.
78.
‘The system established under Article 7 of the RAD 2012 makes refusal to grant access to documents subject to a two-step procedure, in which only the confirmatory decision pursuant to [Article 7(6) RAD 2012] constitutes the institution’s final statement of position’ Case E-5/13, DB Schenker V, cited above, paragraph 95. Compare, inter alia, Case C-362/08 P Internationaler Hilfsfonds v. Commission, [2010] ECR I-669, paragraphs 51–54, and Joined Cases T-355/04 and T-446/04, Co-Frutta v. Commission [2010] ECR II-1, paragraph 32.
79.
Case E-5/13, DB Schenker V, cited above, paragraph 95.
80.
Article 8(1) RAD 2012.
81.
See by analogy, Case E-7/13 Creditinfo Lánstraust hf. v. þjóðskrá ĺslands og íslenska ríkið [2013] EFTA Ct. Rep. 970.
82.
Article 4(9) RAD 2012.
83.
Article 8(2) RAD 2012; See also Case E-14/11, DB Schenker I, cited above, paragraph 185, where the Court noted without comment that an applicant had simply been directed to documents which were released by ESA (these were already in possession of the applicant in question).
84.
Article 10 RAD 2012.
85.
Article 9(1) RAD 2012. Nevertheless, the same distinction is made in Article 2(3) RAD 2012.
86.
Article 8(3) RAD 2012.
87.
Article 12 RAD 2012.
88.
Article 7(6) RAD 2012. This corresponds to Article 8(3) Regulation 1049/2001.
89.
See above at Sect. 4.1.
90.
See Case E-5/13 DB Schenker IV, cited above, paragraph 95 and compare, Case T-42/05 Williams v. Commission [2008] ECR II-156, paragraph 126.
91.
Case E-14/11, DB Schenker I, cited above, paragraph 125 and by comparison, Joined Cases T-391/03 and T-70/04 Franchet and Byk v. Commission [2006] ECR II-2023, paragraph 83.
92.
Compare, Case T-437/08 CDC Hydrogene Peroxide Cartel Damage Claims v. Commission, cited above, paragraph 47.
93.
Case E-14/11, DB Schenker I, cited above, paragraph 125 and by comparison, Case T-2/03 Verein für Konsumenteninformation v. Commission [2005] ECR II-1121 (‘VKI’), paragraphs 74 and 75. Indeed, the particular document may have already been the subject of a concrete, individual assessment by ESA in similar circumstances.
94.
Case E-14/11, DB Schenker I, cited above, paragraph 126 and compare, to that effect, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council [2008] ECR I-4723, paragraph 43; Case T-2/03, VKI, cited above, paragraph 69, and Case T-211/00 Kuijer v. Council [2002] ECR II-485, paragraph 56.
95.
Or the synonymous ‘if there is an overriding public interest in disclosure’ in Article 4(6) RAD 2012.
96.
Case E-14/11, DB Schenker I, cited above, paragraph 127.
97.
Case E-14/11, DB Schenker I, cited above, paragraph 128.
98.
Case E-14/11, DB Schenker I, cited above, paragraph 129 and case-law cited.
99.
Article 3(b) RAD 2012 defines ‘third party’ as meaning ‘any natural or legal person, or any entity other than [ESA], including the EFTA States, EFTA and institutions and bodies of the European Union and third countries.’
100.
Case C-576/12 P Jurašinović v. Council, judgment of 28 November 2013, not yet reported, paragraph 43 would provide a starting point in interpreting Article 4(1) RAD 2012. Article 9 Regulation 1049/2001 on the treatment of sensitive documents reads: ‘1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters. 2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register . 3. Sensitive documents shall be recorded in the register or released only with the consent of the originator. 4. An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4. 5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected. 6. The rules of the institutions concerning sensitive documents shall be made public. 7. The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.’
101.
Commission Decision of 29 November 2001 amending its internal Rules of Procedure, (2001/844/EC, ECSC, Euratom) [2001] OJ L 317 of 3 December 2001, p. 1, Appendix 2.
102.
In addition, it should be noted that Article 9 of the EFTA Council’s rules on access to documents (Decision of the EFTA Council No. 6 of 2007 (as amended)) provides that ‘The classification (Strictly confidential, Confidential, Restricted) of any given document does not in itself exclude it from access by the public at a later stage.’
103.
The notion of an overriding public interest in disclosure will be discussed below at Sect. 4.6.8.
104.
Article 4(2)(a) RAD 2012.
105.
Case E-14/11DB Schenker I, cited above, paragraphs 131 to 133 and 224.
106.
Article 4(2)(b) RAD 2012.
107.
Case E-5/13 DB Schenker V, cited above, paragraph 66.
108.
Article 4(2)(c) RAD 2012. Article 9 of Protocol 23 EEA lays down the circumstances in which information may be exchanged and used between the Commission and ESA. Article 9(2) of Protocol 23 EEA provides that ‘Information acquired or exchanged pursuant to this Protocol shall only be used in evidence for the purpose of procedures under Articles 53 and 54 of the Agreement and in respect of the subject matter for which it was collected.’
109.
Article 4(2)(d) RAD 2012. Similar to the situation described above in footnote 108 above, Article 12 of Protocol 4 SCA lays down the circumstances in which information may be exchanged and used between ESA and the competition authorities of the EFTA States. Article 12(2) of Protocol 4 SCA provides that ‘[I]nformation exchanged shall only be used in evidence for the purpose of applying Article 53 or Article 54 of the EEA Agreement and in respect of the subject-matter for which it was collected by the transmitting authority. However, where national competition law is applied in the same case and in parallel to EEA competition law and does not lead to a different outcome, information exchanged under this Article may also be used for the application of national competition law.’
110.
The notion of an overriding public interest in disclosure will be discussed below at Sect. 4.6.8.
111.
Article 4(3)(a) RAD 2012.
112.
Article 4(3)(b) RAD 2012.
113.
The notion of an overriding public interest in disclosure will be discussed below at Sect. 4.6.8.
114.
Case E-14/11 DB Schenker I, cited above, paragraph 129 and by comparison, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council, cited above, paragraph 49.
115.
Case E-14/11 DB Schenker I, cited above, paragraph 130 and by comparison, Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v. Council, paragraph 50; and Case T-2/03, VKI, paragraphs 54 and 55, both cited above, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v. API and Commission [2010] ECR I-8533 paragraph 74.
116.
Case E-14/11 DB Schenker I, cited above, paragraph 134.
117.
Case E-14/11 DB Schenker I, cited above, paragraph 135.
118.
Case E-14/11 DB Schenker I, cited above, paragraph 136 and Case T-2/03, VKI, cited above, paragraph 112 and case-law cited. In DB Schenker I, ESA’s contention that 352 inspection documents , comprising 2800 pages of material (three ring-binders) was a very large number and thus subject to this derogation was rejected by the Court (see paragraphs 269 and 270). Likewise in VKI, the General Court rejected the Commission’s arguments on this point even though the documents to which access was sought in that case amounted to 47,000 pages (see Case T-2/03 VKI paragraph 17).
119.
Case E-14/11 DB Schenker I, cited above, paragraph 131. These document access systems form part of the regulations (such as Articles 17 and 18(3) of Regulation No 4064/89 and Article 17 of Regulation No 447/98 as regards EU merger control, or Protocol 3 SCA, and, in particular, Article 20 thereof, as regards ESA State aid investigations) applicable for those investigations or inspections. Importantly, it must be understood that the Union courts have taken the view upon a ‘functional basis’ that these document access regimes should always be borne in mind even if the particular investigation has closed. The perspective that such document access systems should be taken into account while a particular investigation is on-going, or if challenged before the courts until such time as the judgment is binding, is entirely sensible. Once that point in time has been reached, however, the situation differs. To continue to take such document access systems into account is a dubious policy choice given that the cases to which they apply have closed. That is not to say that there may not be sensible policy reasons not to permit access to the documents on account of their nature, but it is illogical to continue to apply a body of rules whose temporal impact on a particular case has expired for that reason primarily.
120.
Joined Cases E-4/12 and E-5/12 Risdal Touring and Konkurrenten v. ESA [2013] EFTA Ct. Rep. 668 and Case C-139/07 P Commission v. Technische Glaswerke Ilmenau [2010] ECR I 5885, paragraph 58.
121.
Cases C-404/10 P Commission v. Editions Odile Jacob, judgment of 28 June 2012, published electronically, paragraph 123.
122.
Case E-14/11 DB Schenker I, cited above, paragraph 130; T-380/08 Netherlands v. Commission (‘Bitumen cartel’), Judgment of 13 September 2013, published electronically, paragraph 42, Case C-365/12 P Commission v. EnBW Energie Baden-Württemberg, judgment of 27 February 2014, published electronically, paragraphs 92, 93, 114 and 128.
123.
Joined Cases E-4/12 and E-5/12 Risdal Touring and Konkurrenten v. ESA, cited above, paragraphs 115 to 118, Case C-139/07 P Commission v. Technische Glaswerke Ilmenau, cited above, paragraph 58, Case E-14/11 DB Schenker I, cited above, paragraph 131 and C-477/10 P Commission v. Agrofert Holding, judgment of 28 June 2012, published electronically, paragraphs 51 and 52.
124.
Case C-404/10 P Commission v. Editions Odile Jacob, cited above, paragraphs 121, 123 to 126; Case E-14/11 DB Schenker I, cited above, paragraph 131 and Joined Cases E-4/12 and E-5/12 Risdal Touring and Konkurrenten v. ESA, cited above, paragraph 114.
125.
Nevertheless, it remains open to an applicant to make submissions that the general presumption does not apply: C-477/10 P Commission v. Agrofert Holding, cited above, paragraphs 68 and 72.
126.
Case C-365/12 Commission v. EnBW, cited above, paragraphs 90 and 93.
127.
Polley (2014), pp. 449 and 450, Case C-365/12 Commission v. EnBW, cited above, paragraphs 99 and 107.
128.
Case E-14/11 DB Schenker I, cited above, paragraph 133.
129.
Case E-14/11 DB Schenker I, cited above, paragraphs 131–133 and 224.
130.
Case E-14/11 DB Schenker I, cited above, paragraph 133. C-536/11 Donau Chemie and Others, judgment of 6 June 2013, published electronically, paragraphs 25 to 27.
131.
Article 6(2) of the Damages Directive.
132.
Case E-14/11 DB Schenker I, cited above, paragraph 188 and see, by comparison, Case T-437/08 CDC Hydrogene Peroxide Cartel Damage Claims v. Commission [2011] ECR II-8251, paragraphs 44 and 45, and T-380/04 Terezakis v. Commission, not published in the ECR, paragraph 93.
133.
Case E-14/11 DB Schenker I, cited above, paragraph 189 and compare Case T-437/08 CDC Hydrogene Peroxide Cartel Damage Claims v. Commission, cited above, paragraph 49, and Case T-345/12 Akzo Nobel v. Commission, cited above, paragraph 80.
134.
See, by comparison, Case C-453/99, Courage and Crehan [2001] ECR I-6297, paragraphs 24 and 26, and Case T-437/08, CDC Hydrogene Peroxide Cartel Damage Claims v. Commission, paragraph 49, cited above, Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraphs 59 and 61, and Case C-557/12 KONE, judgment of 5 June 2014, published electronically, paragraph 23.
135.
Case E-14/11 DB Schenker I, cited above, paragraph 132, and compare Case T-345/12 Akzo Nobel v. Commission, judgment of 28 January 2015, not yet reported, paragraph 84.
136.
Case C-365/12 P Commission v. EnBW Energie Baden-Württemberg, cited above, paragraphs 107 and 108.
137.
Joined Cases C-514/07 P, C-528/07 P and C-532/07 P, Commission v. API, cited above, paragraph 93.
138.
Joined Cases C-514/07 P, C-528/07 P and C-532/07 P, Commission v. API, cited above, paragraphs 130 and 131.
139.
Dreissen (2012), p. 95; Maubernard (2011), p. 502, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P, Commission v. API, cited above, paragraphs 132 and 133.
140.
Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council, cited above, paragraph 37 and Case C-350/12 P Council v. Sophie in’t Veld, cited above, paragraph 95.
141.
Case C-350/12 P Council v. Sophie in’t Veld, cited above, paragraph 96 and to that effect, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council, cited above, paragraphs 38 to 44.
142.
Case E-14/11 DB Schenker I, cited above, paragraphs 133, 222 and 224, and compare, C-536/11 Donau Chemie and Others, cited above, paragraphs 25 to 27.
143.
Case E-5/13, DB Schenker V, cited above, paragraph 66, and case-law cited.
144.
Indeed this extract was annexed to ESA’s plea of inadmissibility: see, Order of the Court of 12 May 2014 in Case E-8/12, DB Schenker III, cited above, paragraphs 170 and 171.
145.
Or it’s synonymous ‘if there is an overriding public interest in disclosure’ in Article 4(6) RAD 2012.
146.
Case E-14/11 DB Schenker I, cited above, paragraph 126 and, by comparison, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council, cited above, paragraph 49.
147.
Case E-14/11 DB Schenker I, cited above, paragraph 239 and, by comparison, C-532/07 P Sweden and Others v. API and Commission, cited above, paragraph 152, and Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council, cited above, paragraph 67.
148.
Dreissen (2012), p. 66.
149.
Unlike the ECJ which does not consider private damages claims to constitute an overriding public interest , in the absence of necessity see Case C-365/12 P Commission v. EnBW Energie Baden-Württemberg, cited above, paragraphs 107 and 108.
150.
Case E-14/11 DB Schenker I, cited above, paragraph 240 and, to that effect, the Opinion of Advocate General Kokott in Case C-506/08 P Sweden v. Commission [2011] ECR I-06237, point 108.
151.
Case E-14/11 DB Schenker I, cited above, paragraphs 132,133 and 241, Case E-5/13 DB Schenker IV, cited above, paragraph 134, and compare Case T-345/12 Akzo Nobel v. Commission, cited above, paragraph 84. As regards the importance of private enforcement compare also the opinions of Advocate General Kokott in Case C-681/11 Schenker and Co AG, opinion of 28 February 2013, not yet reported, point 114 and Case C-557/12 Kone and Others, opinion of 30 January 2014, published electronically, point 60, and the judgment of the General Court in Case T-345/12 Akzo Nobel and Others v. Commission, published electronically, paragraph 80.
152.
Case C-365/12 P Commission v. EnBW Energie Baden-Württemberg, cited above, paragraphs 107 and 108.
153.
See generally, Polley (2014). Reference here is made to page 435, 458.
154.
Compare Case E-14/11 DB Schenker I, cited above, paragraph 278.
155.
Case E-14/11 DB Schenker I, cited above, paragraph 281.
156.
Compare Case E-14/11 DB Schenker I, cited above, paragraph 279. Compare Case T-213/01 Österreichische Postsparkasse v. Commission [2006] ECR II 1601, paragraph 199.
157.
Compare Case E-14/11 DB Schenker I, cited above, paragraph 280.
158.
See above at Sect. 4.4.
159.
Case E-5/13 DB Schenker IV, cited above, paragraph 132 and Case E-14/11 DB Schenker I, cited above, paragraphs 279 to 281.
160.
Order of the Court of 14 October 2014 in Joined Cases E-4/12 and E-5/12 COSTS Risdal Touring AS and Konkurrenten no AS v. ESA, not yet reported, paragraph 113.
161.
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ 2003 L 345, p. 90) was added to point 5k of Annex XI to the EEA Agreement by Decision 105/2005 of 8 July 2005 of the EEA Joint Committee (OJ 2005 L 306, p. 41).
162.
Case E-7/13 Creditinfo Lánstraust hf. v. þjóðskrá ĺslands og íslenska ríkið [2013] EFTA Ct. Rep. 970.
163.
Baudenbacher and Clifton (2014), p. 6.
164.
Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, [2006] OJ L264/13.
165.
As a natural consequence, Directive 2003/4/EC (Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ L 41, 14.2.2003, pp. 26–32) which implements the pillar on access to information of the Aarhus Convention, is also not a part of the EEA Agreement.
166.
Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community (OJ L 043, 15.2.1983, p. 1) as amended by Regulation 1700/2003.
167.
Documents are in principle accessible to the public 30 years after their creation—Article 1 of the revised Archives Regulation. However, it is at present extremely difficult to obtain access to the ECJ’s archive. Indeed, as yet only the case files in Cases 26/62 Van Gend en Loos [1963] ECR 3 and 6/64 Costa v. ENEL [1964] ECR 585 have been made public with the case file in Costa v. ENEL being released only on 30 October 2014. It can be downloaded at: http://www.eurojus.it/wp-content/uploads/2014/10/fascicoli-Costa-Enel.zip.
168.
Décision de la Cour de Justice de l’Union Européenne relative au dépôt des archives historiques de la Cour de justice de l’Union européenne auprès des Archives historiques de l’Union européenne (Institut universitaire européen) of 10 June 2014. The EUI is currently awaiting the transfer of the documents as may be seen from the EUI’s Historical Archives website available at: http://archives.eui.eu/en/fonds/#EU Institutions accessed 23 October 2014. Although there would not appear to be a framework agreement with the ECJ at present, it will presumably be similar to the Framework Partnership Agreement 2011 applicable to the archives of the European Parliament, the Council of Ministers, the European Commission, the European Court of Auditors, the European Economic and Social Committee, the European Investment Bank and the CEDEFOP. Annex 1 of that Framework Partnership Agreement is available at: http://www.eui.eu/Documents/Research/HistoricalArchivesofEU/PublicationsAbouttheFonds/FrameworkPartnershipAgreement2011.pdf, (last accessed 23 October 2014).
169.
Pursuant to the Court’s SOP Direct Actions 2012, paragraph 31 and SOP Advisory Opinions 2012, paragraph 34. This procedure has been made use of by researchers on numerous occasions.
170.
Other than by using particularly generous access to documents or information regimes at national level such as that applicable in Sweden. Curiously, in that regard, ESA has set down in Article 5 RAD 2012 that ‘upon request, [it] shall indicate whether it considers that disclosure of an [ESA] document in the possession of an EFTA State would undermine such interests as protected in Article 4.’
171.
Case 2/88 Zwartveld and Others [1990] ECR 3365, paragraph 17.
172.
Joined Cases E-5/04, E-6/04, and E-7/04 Fesil and Others v. ESA [2005] EFTA Ct. Rep. 117, paragraph 128. See also EFTA Surveillance Authority Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 51 and 54 of the EEA Agreement OJ 2006 C 305, p. 19 and EEA Supplement to the Official Journal 2006 No 62, p. 21, in particular points 15, and 21 to 26.
173.
Case 2/88 Zwartveld and Others, cited above, paragraph 25.
174.
Dreissen (2012), p. 10.
175.
See for example, the Order of the President of the General Court of 16 November 2012 in Case T-345/12 R Akzo Novel NV and Others v. Commission, not reported. Moreover, EFTA Surveillance Authority Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 51 and 54 of the EEA Agreement, points 25 and 26 state:

‘Consequently, before transmitting information covered by professional secrecy to a national court, [ESA] will remind the court of its obligation under EEA law to uphold the rights which Article 122 of the EEA Agreement and Article 14 [SCA] confers on natural and legal persons and it will ask the court whether it can and will guarantee protection of confidential information and business secrets. If the national court cannot offer such guarantee, [ESA] shall not transmit the information covered by professional secrecy to the national court. Only when the national court has offered a guarantee that it will protect the confidential information and business secrets, will [ESA] transmit the information requested, indicating those parts which are covered by professional secrecy and which parts are not and can therefore be disclosed.

There are further exceptions to the disclosure of information by the [ESA] to national courts. Particularly, [ESA] may refuse to transmit information to national courts for overriding reasons relating to the need to safeguard the interests of the EEA or to avoid any interference with its functioning and independence, in particular by jeopardizing the accomplishment of the tasks entrusted to it. Therefore, [ESA] will not transmit to national courts information voluntarily submitted by a leniency applicant without the consent of that applicant.’
176.
Case E-14/11 DB Schenker I, cited above, paragraph 223.
177.
Euractiv (2014).
178.
Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. It is reasonable to estimate that this Directive will be adopted by the EEA Joint Committee, and hence brought into EEA law, in 18 months to 2 years’ time.
179.
European Commission (2014).
180.
Articles 3(1) and 2(1) Damages Directive read together.
181.
Recital 16 to the Damages Directive. Article 5(2) of the Damages Directive makes this even clearer, stating that ‘Member States shall ensure that national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification.’
182.
Article 6(6) and Recital 27 to the Damages Directive.
183.
Recital 29 to the Damages Directive. In fuller detail in Article 6 Damages Directive. (on this point especially 6(10) Damages Directive) Further limits on the use of evidence obtained solely through access to the file of a competition authority may be found in Article 7 of the Damages Directive. Interestingly, however, Article 6(2) of the Damages Directive provides that ‘this Article is without prejudice to the rules and practices on public access to documents under Regulation (EC) No 1049/2001.’
184.
Baudenbacher and Clifton (2014), pp. 5–6.
185.
To quote Sir Arnold Robinson, Cabinet Secretary, in ‘Yes Minister’ explaining the standard view of civil service on open government, ‘Open Government is a contradiction in terms. You can be open or you can have government.’ Lynn and Jay (1989), p. 21.
186.
In a similar way to the impact of the drafting and introduction of the Twelve Tables in Rome as recalled by Livy. Livius (1905), Book 3, paragraphs 34 and 57.
187.
The Rt. Hon. Lord McNally (2011), the then Minister of State for Justice on 20 October 2011.
188.
Baudenbacher and Clifton (2014), pp. 5–6.

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Cleary Gottlieb Steen & Hamilton LLP, Cologne, Germany
Romina Polley
EFTA Court, Luxembourg City, Luxembourg
Michael-James Clifton

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Polley, R., Clifton, MJ. (2016). The Principles of Transparency and Openness, and Access to Documents. In: Baudenbacher, C. (eds) The Handbook of EEA Law. Springer, Cham. https://doi.org/10.1007/978-3-319-24343-6_29

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