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Decision in case 1723/2017/TE on the Court of Justice of the EU’s alleged failure to reply appropriately to a request for access to documents

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  • Case: 1723/2017/TE
    Opened on 06 Oct 2017 - Decision on 31 Oct 2017
  • Institution(s) concerned: Court of Justice of the European Union

The case concerned the Court of Justice of the EU’s refusal to grant access to correspondence that would have been exchanged between several German authorities and members of the Court concerning a particular case in the period between January and March 2017. The Court considered that all documents exchanged with the German authorities were lodged within the context of the case in question. It refused to reply to the request for review made by the complainant on the grounds that Regulation 1049/2001 does not apply when the Court exercises its judicial functions.

The Ombudsman requested the Court to confirm whether there was any correspondence exchanged in that context that was not part of the case file and, thus, could fall outside the Court’s judicial functions. The Court of Justice confirmed to the Ombudsman that no such correspondence exists.

In the absence of any documents exchanged with the German authorities other than those lodged within Case 638/16 PPU, the Ombudsman finds that the Court of Justice was right to conclude that Regulation 1049/2001 does not apply, and closed the inquiry with a finding of no maladministration

Background to the complaint

1. In August 2017, the complainant, who is a journalist working for a non-governmental organisation that promotes open knowledge and transparency, submitted an access to document request to the Court of Justice of the EU. In his request, the complainant asked for any kind of correspondence between several German authorities and members of the Court that would have been exchanged in the period between 15 January and 7 March 2017 concerning Case 638/16 PPU[1].

2. The Court refused access to the requested correspondence, pointing out that documents lodged in cases before the Court are strictly confidential and are not disclosed to those who are not parties to the proceedings. The complainant made a confirmatory application stating that his request did not concern access to the documents that were lodged by the parties in the case in question, but correspondence exchanged between the German authorities and the Court referring to that case. Having received no reply, the complainant sent a reminder to the Court in September 2017. On 28 September 2017, the Court informed the complainant that Regulation 1049/2001 on public access to documents[2] is not applicable to the Court when exercising its judicial functions and, thus, the Court would not reply to his request.

3. On 30 September 2017, the complainant turned to the European Ombudsman to complain about the Court’s refusal to grant access.

The inquiry

4. The Ombudsman opened an inquiry into the complaint and asked the Court to confirm whether there was any correspondence exchanged between the German authorities mentioned by the complainant and the Court, which refers to the case in question and is not part of the case file.

The Ombudsman's assessment

5. The Ombudsman notes that Regulation 1049/2001 applies to public access to documents of the European Parliament, the Council of the EU and the European Commission. It does not apply to requests for access to documents addressed to the Court when it exercises its judicial functions. However, with the introduction of Article 15(3) of the Treaty on the Functioning of the European Union (TFEU), the Court has become subject to the rules on access to documents when exercising its administrative tasks. To implement Article 15(3) TFEU, the Court adopted a decision concerning public access to documents held by it[3].

6. The Ombudsman takes note of the fact that the Court confirmed in its reply to the Ombudsman that no correspondence exists between the German authorities and the Court other than the documents that were lodged in Case 638/16 PPU.

7. The Ombudsman therefore finds that the Court was right to conclude that Regulation 1049/2001 did not apply in this case and that no maladministration occurred.

 

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The Ombudsman finds no maladministration by the Court of Justice of the EU.

The complainant and the Court of Justice of the EU will be informed of this decision.

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 31/10/2017

 

[1] Case C-638/16 PP X and X/ Etat Belge EU:C:2017:173

[2] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

[3] Decision of 11 December 2012 concerning public access to documents held by the Court of Justice in the exercise of its administrative functions (OJ 2013 C 38, p. 2), replaced by a decision of 11 October 2016 (OJ 2016 C 445, p. 3).