Public access to documents: effective rear guard to a transparent EU?

By Elinor Pecsteen

Recently, journalists from all EU member states raised, for the first time ever, a joint voice before the Court of Justice of the European Union (CJEU) against the refusal of the European Parliament (EP) to give access, on grounds of personal data protection, to information on how MEPs spend their allowances.

This development is no surprise as the endeavour by individuals and non-governmental organisations alike to hold the EU to its democratic imperative of openness and transparency has been a clearly increasing tendency over the years. However, meeting the expectations of the civil society is not always an easy task for the EU institutions, which must keep a fair balance between transparency and the protection of an individual’s privacy and integrity throughout their processes.

This balance has become essential in the present context of increasing numbers of requests for public access to EU institutions documents containing personal data. Yet, the question remains unclear as to when it is legitimate for an institution to refuse access to documents on the ground of personal data protection.

The following post attempts to shed some light on this question by discussing two recent CJEU judgments whose common threads allow for some interesting consistency to be found in the Court’s logic. On the basis of these judgments, it would seem that for the Court, the use of personal data protection as a justification for refusing requests for access to documents should be restricted. Such requests are essential to increase the confidence of citizens in the EU and require that, provided the conditions are fulfilled, full access be given to the institutions’ documents, personal data included. The Court specifies that the context of public mistrust in the EU and the potential dual role of its decision-makers must weigh in the institutions’ assessment of the conditions.

The legal framework

Article 15 (3) of the TFEU grants third parties a general right to access the information held by EU institutions and bodies. As a rule, disclosure may only be refused on the basis of a limited set of exceptions found in Regulation (EC) no 1049/2001 (hereinafter the Transparency Regulation), to be interpreted restrictively and subject to the absence of an overriding public interest in disclosure.

One of the exceptions, laid down in Article 4(1)(b) of the Transparency Regulation, provides for situations where access to personal data is requested. It states that institutions shall refuse access to a document where the disclosure would undermine the protection of an individual’s privacy and integrity. In C-28/08, Commission v Bavarian Lager, the Court stated that in practice, when considering whether to give way to such a request, EU institutions must apply the Transparency Regulation in conformity with Article 8 of Regulation (EC) no 45/2001. The latter authorises the transfer of personal data to third parties provided that (1) they demonstrate that access is necessary and (2) that the institutions consider that access will not harm the data subject’s legitimate interests.

The Court on the link between transparency and avoidance of conflicts of interests

In July 2015 the CJEU rendered two judgments in which it got the opportunity to give the EU institutions indications as to how Article 8 of Regulation 45/2001 should be understood. In these cases the Court, although keeping a restrictive lecture of the Article 4(1)(b) derogation, enables both the EU institutions and the public to better seize the full purpose and potential of requests for public access to documents.

In case T-82/09, Dennekamp v Parliament, the request for public access to documents was sent to the EP following the adoption by the institution of an additional pension scheme for Members of the European Parliament (MEPs). Dennekamp requested access to the list of the MEPs who were members of the additional pension scheme in order to reveal potential conflicts of interest. He then lodged an action in response to the EP’s refusal to disclose the list on the ground that it contained personal data.

The Court, in order to be in line both with the intention of the Transparency Regulation to ensure the “widest possible access to documents” and with the requirement to protect privacy and integrity, redefined the request for access in accordance to the complainant’s aim. The Court ruled that, for the purpose of exposing potential conflicts of interests, it was sufficient that Dennekamp be granted access to the names of the MEPs members of the scheme who had actually taken part in the votes on the scheme, and not to the entire list of the MEPs in the scheme.

Furthermore, when ruling on the second condition of Article 8 Regulation 45/2001 whereby EU institutions have a duty to verify that data subjects’ legitimate interests may not be harmed by the transfer, the Court found that the personal data at issue fell into the public sphere of MEPs and as such required a lesser degree of protection. In the weighing of interests, the Court considered that the aim of the transfer intending to increase the confidence of citizens in the EU was of such importance that the transfer could not prejudice the interests of the MEPs.

In judgment C-615/13P, ClientEarth and PAN Europe v EFSA of 16 July 2015, the European Food Safety Authority (EFSA)’s decision to grant the two NGOs access to draft versions of a scientific output that they had requested was at stake. The NGOs complained because the Authority had masked the names of the scientific experts linked to their comments in the drafts.

While the General Court at first instance ruled in favour of EFSA’s decision of non-disclosure of the names of the experts, this decision, contested by the claimants, was annulled by the ECJ in the present case on the ground that the need to disclose the personal data had been sufficiently established by the claimants through their allegations of the existence of a climate of suspicion surrounding the authority. The Court further held that disclosure of the personal data was necessary to ensure that an assessment of the influence of the experts’ own scientific opinions on the content of the measure was made.

 As to the assessment of the second condition, the Court insisted that for prejudicial effects to be found, there had to be a concrete evidence of a risk to the privacy and integrity of data subjects. Unsupported, hypothetical or generic justifications, such as the argument of possible individual attacks on experts, could not be accepted. The Court thus concluded that the transfer of the data in question was to be allowed on the basis of Regulation no 45/2001.

Commentary

It is interesting to note first that the context of the two cases differs. While in Dennekamp the data subjects were officials of the EU fully invested in the decision-making process of the public authority, in the PAN case the scientific experts were external to EFSA. The relevance of the question of the impartiality of their inputs and of their accountability is, however, evident considering the current use of scientific evidence as a source of political authority, with scientists often being pressured by politics and lobbies and sometimes seeing their work misrepresented in political contexts. As such, they are just as much actors in the decision-making of the EU institutions.

In spite of the contextual differences of the two cases at hand, there is consistency in the Court’s reasoning. The Court recurrently emphasises the notion that ensuring transparency in the decision-making process necessarily involves review by the public. It makes it clear that the determining prerequisite is that there is a perceived conflict of interest, regardless of whether an actual lack of impartial performance occurred: “the concept of a conflict of interest does not relate only to a situation in which a public official has a private interest which has actually influenced the impartial and objective performance of his official duties (…) but also to a situation in which the interest identified may, in the eyes of the public, appear to influence the impartial and objective performance of his official duties” (emphasis added). The overall presumed partiality of the institutions in the public view can thus be good starting point to the demonstration that access to the personal data is necessary.

Going further in the analysis, the Court validates the argument of perceived conflicts of interests in each of the present cases precisely because both times, the data subjects concerned are decision makers who hold two positions or two interests that can be perceived as conflicting. Therefore, the fact that the data subjects hold two potentially contradicting roles and therefore risk being seen as impartial in the public eye is a decisive aspect.

Therefore the Court seeks to encourage the public to evaluate the correlation between the data subject’s role in the decision-making and his/her side line ‘activities’, and consequently the existence of potential conflicts of interests:

  • For EFSA, how the expert’s comments together with his or her background in industry/lobbies had influenced the content of the scientific opinion.
  • For the EP, how being a member of the pension scheme had influenced the MEPs’ voting on this scheme.

In essence, showing that the data subjects have a dual role in a context of apparent lack of impartiality may be considered sufficient to establish that there is a risk to the impartial and objective performance of official duties and demonstrating the need to get access to the personal data involved.

Indeed, in a context of general distrust of the EU institutions, giving the chance to the public to keep an eye on the impartiality of public officials can be an efficient deterrent to the temptations of the latter to contract conflicts of interests: “the disclosure of potential conflicts of interest is aimed at informing the public of the risks of public officials being subject to conflicts of interests, so that they act impartially in the performance of their official duties”.

In view of this, it could be argued that for the Court public access to documents requests have become not only a tool to unveil potential conflicts of interests after a decision has been adopted, but possibly also a preventive mechanism to ensure the a priori impartiality of decision-makers. In this respect, it shall be interesting to discover how far this idea will walk from the courtroom in Luxembourg to reach civil society.

5 comments

  1. edecapitani

    Hello Elinor, may I re-blog it on the “FREE-Group.eu” Blog by making clear reference to the original site ?
    Thanks in advance..!!
    Emilio De Capitani

    • Laurens Ankersmit

      Dear Emilio, thank you for your interest in reposting Elinor’s post and for your courtesy to contact us beforehand. The best thing to do is to send us an email to our emailaccount so we can contact the author.

  2. Kamen Chanov

    Thank you for your analysis, it was truly compelling. Indeed, I also find it curious how these decisions would be put into practice. On the one hand, it seems to me rather random and dependent on chance that the civil society would be always vigilant and alert so as to timely discover conflicts of interest. In that sense, could a centralized organization be better fit to monitor the EU institution by institution for partiality?
    On the other hand, the most important negotiations at the EP, the Council, etc. often happen at closed doors. Wouldn’t such a scrutiny prove to be too much of a constraint on decision-makers’ ability to strike a deal?
    Maybe I’m stretching this too far… Personally, I’m in favour of the following chain of reliability:
    Transparency > Accountability > Consequences > Enforcement

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