Brussels, 22/07/2011 (Agence Europe) - In its judgment of 21 July (C-506/08 P), the EU Court of Justice ruled in Sweden's favour, partially cancelling a General Court ruling and Commission decisions on refusing access to certain internal documents relating to a closed merger procedure. To justify its refusal, the Commission must, the Court states, set out the specific reasons supporting the conclusion that their disclosure would seriously undermine the decision-making process of the institution and the protection of legal advice.
The present case forms part of a dispute going back to 1999, when MyTravel (then called Airtours), a UK tour operator, informed the Commission of a planned merger with its competitor, First Choice, in order to obtain a decision authorising that operation. Authorisation was refused on the grounds that it was incompatible with the common market. The General Court had cancelled the decision in 2002 and the Commission had appointed a group of legal experts to consider whether it was appropriate to appeal that judgement, and to assess the implications for merger control procedures or in other areas. Experts had made a report, and MyTravel had requested access to the report, and to relevant documents.
In two separate decisions, the Commission had refused to communicate those documents, invoking the exception to the regulation on public access to documents held by the institutions (EC No1049/2001), which authorises institutions to refuse access on the grounds that, first, disclosure would undermine the decision-making process and the protection of legal advice and, secondly, there was no overriding public interest in disclosure. The General Court had rejected MyTravel's appeal against these two decisions with a ruling in September 2008 (T-403/05), challenged in November 2008 by Sweden, which called for it to be cancelled.
In its judgement, the Court above all explains that some of the documents for which access was refused to MyTravel come within the framework of the Commission's administrative functions and that, although this administrative activity does not require as extensive an access to documents as that concerning the legislative activity of an institution of the Union, that does not in any way mean, as the Commission seems to be suggesting, that such an activity escapes the rules laid down by the access to documents legislation. The Commission therefore should have explained how access to the documents in question would have been detrimental to the protection of its decision-making process and to the protection of legal advice, and that, in its ruling, the General Court should have required the Commission to indicate its reasons “even through the procedure to which those documents related was closed”.
Regarding the protection of legal advice expressed on the legality of the 1999 decisions (see above), the Court challenged the interpretation of the General Court, which had taken the view that, in particular, the disclosure of internal notes of the Commission's legal service would risk communicating to the public information on future decisions between the same parties or in the same sector (mergers and abuse of dominant position). The Court, however, holds, in this respect, that openness contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and thus increases confidence.
The Court has therefore cancelled part of the 2008 General Court judgment and cancelled the two Commission 2008 decisions, rejecting the requests made by MyTravel to have access to the documents in question. (F.G./transl.jl)