In a preliminary ruling and strategic options case for endocrine disruptors on Tuesday 20 September, the European General Court ruled that the European Commission does not have the right to refuse public access to its internal documents simply on the grounds that this would compromise its decision-making process if it does not provide tangible evidence to demonstrate this.
The case in question (T-51/15) arose from the European Commission’s refusal in 2014 to allow access to 17 documents out of 55 requested by Pesticide Action Network Europe (PAN Europe). The 17 documents in question were destined for internal use and contained preliminary analyses and strategic options under examination concerning the determination of scientific criteria relating to endocrine-disrupting chemicals.
The Commission said it rejected access because of protecting the decision-making process, as foreseen in EU Regulation 1049/2001 on public access to European institutions’ documents (Article 4, paragraph 3). It said that there was a real and serious risk of interference and external pressure following "premature" divulgence of the documents. It feared that premature public release of the above-mentioned documents would also prejudice its margin of manoeuvre and severely reduce its capacity to contribute to reaching compromises internally because it was in the process of assessing the possible consequences of its future proposals in terms of the economy, social affairs and the environment.
Sweden gave its backing to PAN Europe to take the case to the European General Court, which has annulled the Commission’s decision on the 17 documents. While it considers that the reasoning of external pressure is legitimate, it criticised the lack of tangible evidence to back this up. The hypothesis of reduced room for manoeuvre and difficulty reaching internal agreement were not sufficiently backed up either and anyway, this reasoning does not apply as it does not characterise serious damage to the decision-making process.
The General Court said that the Commission had confined itself to "making general, vague and imprecise claims" to justify its decision. The court criticised the Commission’s line of defence as "confining itself to" pointing out that endocrine-disruptors were a "sensitive issue" that drew a lot of attention. No tangible, detailed evidence was adduced to legitimise the Commission’s fears. The ruling does not require the Commission to provide access to all the documents requested by PAN Europe, but it is required to make a new assessment, taking account of the General Court’s ruling for its new decision.
PAN Europe says in a press release that this is a "victory that increases transparency" because the Commission will from now on have to provide detailed information justifying any refusal to grant access to its documents, and will not be able to hide behind their "preliminary" nature or the fact they are for internal use. Noting that the use – by the European Commission and other European bodies, such as the European Food Safety Authority (EFSA) – of the right to protect the decision-making process as grounds for refusing to grant access to their documents did not occur a few years back, PAN Europe wanted to sound the alarm because "the attitude of EU institutions towards transparency is worsening and regulators prefer to overlook the law and deal behind closed doors, keeping European citizens at a distance from public decisions". (Original version in French by Jan Kordys)