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Lobbyists can not expect secrecy

The ‘presumption of confidentiality’ between EU institutions and their contacts can not be used as an argument anymore to reject access to document requests, if the European Court of Justice follows today’s opinion by the General Advocat.

It used to be about Bavarian beers. Now it has turned into a prominent case about transparency, access to information and protection of personal data.  And if the European Court of Justice follows the opinion of the general advocate published today, European institutions in the future will have to notify their contacts, that their names can be revealed to the public under the access to documents regulation.

“The principle of transparency requires that the Commission should inform such outside interlocutors that their presence at any particular meeting will be made public to the extent to which documents are disclosed in accordance with Regulation No 1049/2001. It cannot invoke a supposed ‘presumption of confidentiality’ (to which the Commission baldly refers in its appeal) in order never to disclose their names.” Case C 28/08, OPINION OF ADVOCATE GENERAL SHARPSTON, delivered on 15 October 2009, recital 200

The Bavarian Lager case tries to find a balance between the public’s right to information and the protection of personal interests. General advocate Eleanor Sharpston applies a highly systematic approach, so that the choice of law – access to information or protection of personal data – should depend on the aim, for which the information is held. Thus she makes a distinction between “ordinary documents that contain an incidental mention of personal data” and documents that “contain a large quantity of personal data (for example, a list of persons and their characteristics). The raison d’être of (these) documents is, precisely, to gather together such personal data.”  (recital 159).

The Bavarian Lager case is followed closely, as it is considered a key-case on the question into the protection of personal data when releasing documents to the public.

In her opinion the general advocate gives a step-by-step introduction on how to deal with such cases, which appears to address exactly the insecurity that currently is connected to the question (recitals 158-166).

Eleanor Sharpston also chooses to respond on the question, whether the institutions – in this case the Commission – should be allowed to withhold names from the public in order to protect investigations.

“In summary, the Commission argues that the interpretation in the judgment under appeal takes no account of the need for the Community institution to guarantee, in certain circumstances, confidentiality for persons providing it with information in the course of its investigative activities. Without that power to cloak its sources of information with secrecy, the Commission risks losing an essential working tool for conducting its inquiries and investigations.  I do not agree with the Commission.” (r
ecitals 196-197).

Importantly she mentions the timing of the investigation – which in the Bavarian Lager case not the case. “No investigation was pending or, indeed, even recently concluded.”(recital 200).

However though the Commission should inform contacts of the access to information, it is obliged to, the general advocate recognizes the need to promise anonymity “in certain very specific circumstances.”

Once the court will have made its decision, the Bavarian Lager case must be expected to be of strong importance for the future of public access to documents in the EU. Until then the Court of First Instance judgement in the same case and the guidelines by the European Data Protection Supervisor and the analysis of the European Ombudsman are available.

Brigitte Alfter



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