Statewatch observatory on EU FOI case law
The EU Court System and Freedom of Information
Compiled by Steve Peers, Professor of Law, Human Rights Centre, University of Essex

Background

The EU has two courts. The lower court, the Court of First Instance, deals with cases where individuals sue the EU institutions. Since most disputes over access to documents involve disputes between the institutions denying access to documents and individuals disputing legality of the decision, most of them are before the Court of First Instance.

The second EU court is the European Court of Justice. This Court hears appeals against the judgments of the Court of First Instance (by individuals, the EU institutions or Member States). It also hears cases where the EU institutions sue each other and cases between the EU institutions and the Member States, including for example cases where a Member State sues to annul an act of the institutions. Also, it answers questions about EU law referred from national courts. The European Court of Justice is assisted by Advocate-Generals, who release a non-binding but influential Opinion about how to decide each case before the Court's judgment.

The Courts cannot order the EU institutions to release documents. Instead, they have the more limited power to annul an institution's refusal to release them. This leaves the institution free to refuse the documents on other grounds.

In addition to issuing full judgments, the Courts can also issue orders, for example where an applicant has requested emergency measures, where they believe a case is inadmissible and so there is no need to rule on the merits of the argument (because, for instance, the applicant is out of time to sue), or where they are striking out a case because it has been settled.

Judgments of the Court of First Instance

1. Carvel v. Council Case T-194/94 [1995] ECR II-2765

Judgment: Court of First Instance

Intervenors: Denmark, Netherlands, European Parliament (for the applicant)
Background of applicant: journalist for UK newspaper
Subject-matter: documents relating to Council meetings
Winner: the applicant
Appeal: none

Comment: This was the first case decided on the issue of access to documents. It established the principle that when an applicant requests a document covered by the 'confidentiality' exception in the 1993 rules, the institution has to balance its interest against the applicant's and cannot refuse whole classes of documents automatically.

2. World Wildlife Fund v. Commission Case T-105/95 [1997] ECR II-313

Judgment: Court of First Instance

Intervenors: Sweden (for the applicant); France, UK (for the Commission)
Background of applicant: environmental NGO
Subject-matter: documents relating to infringement proceedings against a Member State for alleged breach of EC environmental law, which the Commission discontinued
Winner: the applicant
Appeal: none

Comment: This was the first case concerning the Commission and access to documents. It established that the institutional rules on access were binding and could be relied upon by individuals against them. It also clarified the distinction between 'mandatory' and 'discretionary' refusals under the 1993 Decisions, stating that an institution could invoke a 'mandatory' and 'discretionary' exception simultaneously. Furthermore, it introduced the principle that exceptions from the rules have to be interpreted and applied strictly. Finally, it is the first case to interpret the exception relating to 'inspections and investigations, etc.'. The applicant won because the Commission had not clearly explained how the documents fell into the exceptions from access.

3. Interporc (I) v. Commission Case T-124/96 [1998] ECR II-231

Judgment: Court of First Instance

Intervenors: none
Background of applicant: importer of goods from outside EC
Subject-matter: documents relating to Commission decision relevant to imports
Winner: the applicant
Appeal: none

Comment: The Commission lost this case because it had not explained how the documents in question fell within the 'court proceedings' exception. This is the first case in which the Court stated that applicants did not have to show an interest to apply for documents.

4. Van der Wal v. Commission Case T-83/96 [1998] ECR II-545

Judgment: Court of First Instance

Intervenor: Netherlands (for the applicant)
Background of applicant: Dutch competition lawyer
Subject-matter: documents sent from Commission to national court in the context of competition law disputes
Winner: the Commission
Appeal: by Van der Wal and Netherlands (see Court of Justice cases below)

Comment: The Court ruled that the 'court proceedings' exception only covered documents drawn up for the purposes of a specific case. However, the exception also meant that national courts had autonomy as to whether to release documents.

5. Svenska Journalistforbundet v. Council Case T-174/95 [1998] ECR II-2289

Judgment: Court of First Instance

Intervenors: Sweden, Denmark, Netherlands (for the applicant); UK and France (for Council) Background of applicant: Swedish journalists' association
Subject-matter: documents relating to negotiation of Europol
Winner: the applicant
Appeal: none

Comment: The Court ruled that the 1993 rules applied to 'third pillar' (justice and home affairs) documents. It also ruled again that an applicant did not have to show an interest to apply for documents. Finally, it suggested that the 'public security' exception cannot cover documents that only relate to negotiations on legislative texts.

6. Rothmans v. Commission Case T-188/97 [1999] ECR II-2463

Judgment: Court of First Instance

Intervenor: Sweden (for the applicant)
Background of applicant: Dutch subsidiary of multinational tobacco company
Subject-matter: documents in 'comitology committee' concerned with tax matters
Winner: the applicant
Appeal: none

Comment: The Court ruled on the first time on the 'authorship rule' in the 1993 rules, which restricted their scope to documents 'authored by' the Commission or Council. It found that this rule was an exception which had to be interpreted and applied strictly. In this case, committees established to advise the Commission on exercise of its powers to implement legislation must be regarded as part of the Commission for the purposes of the rules.

7. Hautala v. Council Case T-14/98 [1999] ECR II-2489

Judgment: Court of First Instance

Intervenors: Sweden, Finland (for the applicant); UK, France (for the Council)
Background of applicant: Finnish Green MEP
Subject-matter: documents relating to Council guidelines on arms exports to third countries
Winner: the applicant
Appeal: by Council (see Court of Justice cases below)

Comment: The Court ruled that the 1993 rules applied to 'second pillar' (foreign policy) documents. It also ruled that partial access to documents must be granted, except where this would cause excessive work for an institution. This case is the first one in which the Court interprets the 'international relations' exception. However, it ruled that where foreign policy documents are at issue, the Court can only review the Council's decision to see if it has breached procedural rules or decided manifestly wrongly on the merits of the issue.

8. Bavarian Lager v. Commission Case T-309/97 [1999] ECR II-3217

Judgment: Court of First Instance

Intervenor: UK (for the Commission)
Background of applicant: German brewery wishing to sell its product in UK
Subject-matter: documents relating to infringement procedure against UK
Winner: the Commission
Appeal: none

Comment: The Court ruled that a draft of a 'reasoned opinion' drawn up during an infringement procedure fell within the scope of the exceptions for 'inspections, investigations, etc.'. However, it expressly ruled that it was not yet established that all documents relating to an infringement procedure fell into the scope of this exception.

9. Interporc (II) v. Commission Case T-92/98 [1999] ECR II-3521

Judgment: Court of First Instance

Intervenors: none
Background of applicant: importer of third-country goods
Subject-matter: documents relating to Commission decision on imports
Winner: both parties in part
Appeal: by Interporc (Case C-41/00 P, pending)

Comment: The Court again intepreted the 'court proceedings' exception, clarifying that in all cases, it only covered documents drawn up for a specific court proceeding. Applicants can use the rules on access in addition to the EU courts' rules of procedure to obtain documents. However, the rules do not extend to documents drawn up by third countries or member States, and there is no 'higher rule of law' that obliges the extension of the rules to such documents.

10. Kuijer (I) v. Council Case T-188/98 [2000] ECR II-1959

Judgment: Court of First Instance

Intervenors: none
Background of applicant: Dutch academic and lawyer
Subject-matter: documents regarding asylum situation in third countries
Winner: the applicant
Appeal: by Council (Case C-239/00 P, later withdrawn)

Comment: The Court ruled that the Council had failed to consider partial access to the documents, which in part potentially fell within the 'international relations' exception. Also, some of the documents appeared to contain only descriptions and factual findings, not really falling under the exception. Finally, when deciding on the applicant's confirmatory application for documents, the Council had failed to reply to the arguments which the applicant made when he applied for them.

11. Denkavit v. Commission Case T-20/99 [2000] ECR II-3011

Judgment: Court of First Instance

Intervenors: none
Background of applicant: Dutch agricultural company
Subject-matter: documents relating to Commission investigation into animal health in Netherlands
Winner: the Commission
Appeal: none

Comment: The Court ruled that the 'inspections, investigations, etc.' exception covered the documents at issue. It also ruled that an institution may simultaneously invoke more than one exception from the list of 'mandatory' exceptions.

12. JT Corporation v. Commission Case T-123/99 [2000] ECR II-3269

Judgment: Court of First Instance

Intervenors: none
Background of applicant: UK importer of third-country products
Subject-matter: documents relating to Commission decision concerning imports
Winner: both the applicant and the Commission (largely the applicant)
Appeal: none

Comment: The Court ruled that the Commission had failed to consider partial access to the documents, which in part potentially fell within the 'inspections, investigations, etc.' exception. Also, some of the documents appeared to contain only descriptions and factual findings, not really falling under the exception. The 'authorship' rule was also applied again, to exclude the application of the rules to documents authored by Bangladesh authorities.

13. Mattila v. Commission and Council Case T-304/99 [2001] ECR II-2265

Judgment: [not yet available on this site]

Intervenors: none
Background of applicant: Finnish individual
Subject-matter: documents relating to EU policy toward Russia and Ukraine
Winner: the Commission and Council
Appeal: Judgment appealed by plaintiff (Case C-353/01 P, pending).

Comment: The Court ruled that the 'international relations' exception covered the documents at issue. It appears to limit the scope of its review in all cases where the 'international relations' exception applied. Also, it appeared to accept that in some cases an applicant has no right to partial access, where the remaining document would not be of any assistance.

14. BAT v Commission Case T-111/00 [2001] ECR II-2997

Judgment: Court of First Instance

Intervenors: none
Background of applicant: UK tobacco company
Subject-matter: documents from Commission committee on excise duties
Winner: the applicant
Appeal: no appeal

Comment: In this case, the Commission was willing to grant partial access to minutes of its committee, but not full access, on the grounds that full access would reveal the position of the Member States on a disputed point concerning taxation of tobacco. Therefore the exception for 'confidentiality of the institutions' proceedings' was applicable. However, the Court ruled for the first time that the private interest of an applicant in obtaining particular documents has to be considered if the institution is aware of it, and furthermore that when discussions on a topic had concluded, the institution no longer had any 'confidentiality' to protect.

15. Petrie v Commission Case T-191/99 [2001] ECR II-3677

       Judgment: Court of First Instance

Intervenors: none
Background of applicant: Foreign-language lecturers in Italy
Subject-matter: 'reasoned opinions' of the Commission sent to Italy during infringement proceedings
Winner: the Commission
Appeal: no appeal

Comment: The Court ruled that the exception for 'investigations' under the Commission's rules covered reasoned opinions issued during infringement proceedings. It also ruled that Article 1 EU and Article 255 EC had no direct effect, and that Article 255 EC could not be used to interpret the prior rules of the Commission because that Article had no legal effect until new access rules had been adopted.

16. Kuijer (II) v. Council Case T-211/00 [2002] ECR II-485

Judgment: Court of First Instance

Intervenors: none
Background of applicant: Dutch academic and lawyer
Subject-matter: documents regarding asylum situation in third countries
Winner: the applicant
Appeal: no appeal

Comment: The Court ruled that the Council had wrongly applied the 'international relations' exception, by failing to consider the effect in practice of releasing the relevant documents on the EU's relations with specific third countries.

17. BAT v. Commission T-311/00 [2002] ECR II-2781

Judgment: Court of First Instance

Intervenors: none
Background of applicant: tobacco company
Subject-matter: preparatory scientific documents drawn up in the process of drafting proposed EC legislation on tobacco content
Winner: no need to adjudicate
Appeal: time for appeal still open

       Comment: Most of the requested documents were supplied by the Commission during the proceedings. As a result there was        no need to rule in this case, although the Commission was ordered to pay the plaintiff's costs and certain costs of the Court        due to its behaviour. The judgment makes clear that an institution's assertion that requested documents do not exist can
       be the subject of legal challenge, although in such a case there is a presumption that the institution's claim is correct.

18. Messina v. Commission T-76/02 [2003] ECR II-3203

Judgment: Court of First Instance

Intervenors: none
Background of applicant: law lecturer
Subject-matter: documents concerning state aids
Winner: the Commission
Appeal: no appeal

Comment: This was the first judgment concerning Regulation 1049/2001, rather than the 1993 rules of the Council and Commission. The dispute concerned Italian documents held by the Commission, and the Italians disagreed with their
release. The Commission therefore referred to Article 4(5) of the Regulation, allowing Member States to request that their documents not be disclosed. The Court ruled that the Commission had not committed a manifest error of assessment in agreeing with the Italian request; it did not rule expressly that Member State's 'requests' are in all cases binding on the EU institutions.

19. Co-Frutta v. Commission T-47/01 [2003] ECR II-4441

Judgment: Court of First Instance

Intervenors: none
Background of applicant: Italian banana importers
Subject-matter: documents concerning implementation of common EU banana market
Winner: the Commission
Appeal: no appeal

Comment: This case is likely to be the last case concerning the 1993 rules of the Council and Commission. The issue was the definition of the 'authorship' rule. The Court held that documents drawn up in the context of the banana market were national documents, not the Commission's documents, and so not covered by the rules. It rejected the argument that documents drawn up by Member States in the context of the Commission's decision-making constitute an exception to the authorship rule.

20. Turco v. Council T-84/03 [2004] ECR II-4061

Judgment: Court of First Instance

Intervenors: Sweden, Denmark, Finland (for applicant); UK, Commission (for Council)
Background of applicant: MEP
Subject-matter: Council legal service advice
Winner: the Council
Appeal: appealed by Turco (Case C-52/05 P and Sweden (Case C-39/05 P)

Comment: The Court of First Instance ruled for the first time on both the 'legal advice' exception expressly set out in the 2001 Regulation, and on the 'public interest override' that applies to a number of exceptions in that Regulation. It interpreted the 'legal advice' exception broadly and placed the burden of proof regarding the 'public interest override' on applicants, ruling also that the override could not be invoked in the general interest of transparency.

21. IFAW v. Commission T-168/02 [2004] ECR II-4135

Judgment: Court of First Instance

Intervenors: Netherlands, Sweden, Denmark (for applicant); UK (for Commission)
Background of applicant: environmental NGO
Subject-matter: documents concerning declassification of protected environmental site
Winner: the Commission
Appeal: appealed by Sweden (Case C-64/05 P)

Comment: The Court of First Instance unambiguously interpreted Article 4(5) of the 2001 Regulation to mean that Member States have a right to veto release of documents 'drawn up' by them.

22. Scippacercola v. Commission T-187/03 [2005] ECR II-1029

Judgment: Court of First Instance

Intervenors: none
Background of applicant: not known
Subject-matter: documents concerning cost-benefit analysis regarding Athens airport
Winner: the Commission
Appeal: no appeal

Comment: The Court applied the 'Member State veto' rule, holding also that it applied to documents drawn up on behalf of a Member State and precluded any partial access.

23. Verein für Konsumenteninformation v. Commission T-2/03 [2005] ECR II-1121

Judgment: Court of First Instance

Intervenors: Bank für Arbeit und Wirtschaft AG
Background of applicant: consumer protection NGO
Subject-matter: documents concerning competition decision
Winner: the applicant
Appeal: no appeal

Comment: The Court ruled that the Commission had issued a blanket refusal concerning a large file, without sufficiently reasoning its refusal as regards individual documents.

24. Sison v Council T-110/03, T-150/03 and T-405/03, [2005] ECR II-1429

Judgment: Court of First Instance (link)

Intervenors: none
Background of applicant: alleged terrorist
Subject-matter: documents concerning the designation of a person as a 'terrorist' by the EU
Winner: the Council
Appeal: by the applicant (Case C-266/05 P, pending)

Comment: This was the first time that the Court ruled on the exceptions for documents concerning 'public security' and 'international relations' in the 2001 Regulation. It applied a conservative interpretation of these exceptions in order to justify refusal of access to the relevant documents.

25. Franchet and Byk v Commission T-391/03 and T-70/04, judgment of 6 July 2006

Judgment: Court of First Instance

Intervenors: none
Background of applicants: staff members allegedly responsible for irregularities concerning EC funds
Subject-matter: documents concerning investigations into the alleged irregularities
Winner: both sides in part
Appeal: the time for appeal is still open

Comment: This was the first time that the Court ruled on the exceptions for documents concerning 'court proceedings' and 'inspections, investigations and audits' in the 2001 Regulation. It applied and further developed the prior jurisprudence concerning these exceptions, and again interpreted the 'public interest' override narrowly (as in the 'Turco' case).

Orders of the Court of First Instance

1. Carvel v. Council Case T-19/96 [1996] ECR II-1519

Order: Court of First Instance

Intervenors: none
Background of applicant: see Case T-194/94
Subject-matter: see Case T-194/94

This order concerns a further case against the Council brought by Mr. Carvel against the Council, withdrawn after the Council supplied various documents.

2. Berge v. Commission Case T-156/97 [1997] ECR II-2097

Order: Court of First Instance

Intervenors: none
Background of applicant: German magazine editor
Subject-matter: documents relating to GM foods

This is an order withdrawing the case after the Commission furnished the requested documents.

3. Carlsen v. Council Case T-610/97 R [1998] ECR II-485

Order: Court of First Instance

Intervenors: none
Background of applicants: Danish individuals
Subject-matter: Council legal service opinions relating to legality of EC legislation adopted with the 'legal base' of Article 235 (now 308) EC
Winner: Council
Appeal: none

The applicants wished to receive documents which they believed could assist them in a dispute before the Danish courts on the constitutionality of Danish membership of the EU. The President of the Court ruled that the mandatory exceptions permitted in the 'public interest' were not exhaustive, and that an exception for 'the stability of the Community legal order', including legal advice given by the institutions, also existed. The case was later withdrawn before judgment on the merits.

4. Elder and Elder v. Commission Case T-78/99 [1999] ECR II-Oct 13

Order: Court of First Instance

Intervenors: none
Background of applicants: UK nationals
Subject-matter: documents relating to VAT committee

This case was discontinued after the Commission issued a reply to the confirmatory application. The Commission was obliged to pay the applicants' costs, but the Court had to rule subsequently on the amount of costs when they were disputed.

5. Elder and Elder v. Commission Case T-178/99 [1999] ECR II-3509

Order: Court of First Instance

Intervenors: none
Background of applicants: UK nationals
Subject-matter: documents relating to VAT committee

This case was discontinued after developments in the dispute, as was the later Case T-356/99 brought by the applicants.

6. Meyer v. Commission Case T-106/99 [1999] ECR II-3273

Order: Court of First Instance

Intervenors: none
Background of applicant: French farmer
Subject-matter: information relating to overseas association
Appeal: none

The Court ruled that the 1993 rules do not extend to documents published in the Official Journal. Moreover, the applicant was to some extent requesting information rather than documents, and the rules only apply to access to documents.

7. Associazione delle cantine sociali venete v. EP and Ombudsman Case T-103/99 [2000] ECR II-4165

Order: Court of First Instance

Intervenors: none
Background of applicants: Italian association
Subject-matter: documents relating to wine distillation
Appeal: none

The applicants were refused Commission documents and took their complaint to the Ombudsman. They were dissatisfied with later developments and so sued the EP and Ombudsman for failure to act. The Court ruled that the case was inadmissible because the Ombudsman was independent of the EP and had only limited functions.

8. Elder and Elder v. Commission Case T-36/00 [2001] ECR II-607

Order: Court of First Instance

Intervenors: none
Background of applicants: UK nationals
Subject-matter: VAT committee documents
Appeal: none

The Court ordered the Commission to disclose copies of the disputed documents to the Court. This is the first such order, following amendments to the Court's rules of procedure which allow it to see such such documents while withholding them from the applicants.

* Note: this case was later withdrawn (removed from the Court's register on 14 May 2001)

9. Pitsiorlas v. Council and European Central Bank Case T-3/00 [2001] ECR II-717

Order: Court of First Instance

Intervenors: none
Background of applicant: Greek doctoral student
Subject-matter: agreement between Central Banks
Appeal: by applicant: Case C-193/01 P, pending (OJ 2001 C 200/51)

The applicant had requested the document from both institutions and was refused by both. By the time the Bank refused the document, he was out of time to sue the Council, and the Court refused to extend the normal vtime-limit. So the case against the Council is inadmissible.

10. BAT v. Commission Case T-111/00 [2001] ECR II-Feb 21

Order: Court of First Instance (in French)

Intervenors: none
Background of applicant: tobacco company established in UK
Subject-matter: documents relating to excise tax
Appeal: none

The Court ordered the Commission to disclose copies of the disputed documents to the Court.

11. BAT v. Commission Case T-41/00 [2001] ECR II-1301

Order: Court of First Instance

Intervenors: none
Background of applicant: tobacco company established in Netherlands
Subject-matter: documents relating to excise tax
Appeal: none

The application was dismissed as inadmissible, on the grounds that the original applicant was a separate company.

European Court of Justice

1. Netherlands v. Council Case C-58/94 [1996] ECR I-2169

Judgment: European Court of Justice

Intervenors: EP (for applicant); Commission, France (for Council)
Background: government outvoted as regards access issues
Subject-matter: validity of 1993 Council Decision on access to documents, Code of Conduct on access to documents, clause in Council rules of procedure
Winner: Council

Comment: The Court ruled that at the time (before the Treaty of Amsterdam), the EU institutions were entitled to govern citizens' right of access to documents by means of their internal decision-making rules, rather than by 'constitutional' legislation.

2. Van der Wal and Netherlands v. Commission Joined Cases C-174/98 P and C-189/98 P [2000] ECR I-1

Judgment: European Court of Justice
Opinion: Advocate General (link)

Intervenors: none
Background of applicant: see Case T-83/96
Subject-matter: joined appeals from Court of First Instance judgment in Case T-83/96
Winner: the applicant and the Netherlands

Comment: The Court ruled that the Court of First Instance had interpreted the 'court proceedings' exception too broadly in its judgment. In particular, the exception did not allow national courts to have full autonomy over the release of documents.

3. Hautala v. Council Case C-353/99 P [2001] ECR I-9565

Judgment: European Court of Justice
Opinion: Advocate General

Intervenors: Denmark, France, Finland, Sweden and UK (for applicant); Spain (for Council)
Background of applicant: see Case T-14/98 above
Subject-matter: appeal by Council against judgment in Case T-14/98 above
Winner: the applicant, dismissing the Council's appeal

Comment: The Court ruled that the rules aimed to give the widest possible access to documents and that applications concerned applications concerned access to information, not just documents. In that light, the rules must be interpreted to permit partial access to documents in all but exceptional cases.

4. Interporc II v Commission Case C-41/00 P [2003] ECR I-2125

Judgment: European Court of Justice
Opinion: Advocate General (link)

Intervenors: none
Background of applicant: see Case T-92/98 above
Subject-matter: appeal by Interporc against judgment in Case T-92/98 above
Winner: the Commission, dismissing the appeal

Comment: The judgment ruled against the appeal, on the grounds that there is no 'higher rule of law' that would invalidate the 'authorship rule' which limited the scope of the prior rules on access to Council and Commission documents (before Regulation 1049/2001).

5. Pitsiorlas v Council and ECB Case C-193/01 P, [2003] ECR I-4837

Judgment: European Court of Justice
Opinion: Advocate General (link)

Intervenors: none
Background of applicant: see Case T-3/00 above
Subject-matter: appeal by applicant against order in Case T-3/00 above
Winner: the applicant, winning the appeal

Comment: The judgment ruled for the appeal, on the grounds that the applicant had good reason to bring proceedings
after the deadline against the two bodies, given the complications of determining which was responsible for considering
the application.

6. Mattila v Council and Commission Case C-353/01 P [2004] ECR I-1073

Judgment: European Court of Justice
Opinion:
Advocate General

Intervenors: none
Background of applicant: see Case T-304/99 above
Subject-matter: appeal by Mattila against judgment in Case T-304/99 above
Winner: the applicant, succeeding on appeal

Comment: The judgment ruled for the appeal, on the grounds that the Council and Commission had given insufficient reasons.

7. Sison v. Council, Case C-266/05 P, opinion of 22 June 2006

Opinion: Advocate General (link)

Intervenors: none
Background of applicant: see Case T-110/03, etc., above
Subject-matter: appeal by Sison against judgment in Case T-110/03, etc. above
Winner: the Opinion suggests the defendant (the Council)

Comment: The Opinion suggests an even more conservative interpretation of the exceptions for 'international relations' and 'public security'.