EU Law Blog

Commission Annual Report on Public Access to Documents

The Commission has published its annual report on the application of Regulation 1049/2001 on public access to its documents.

The report - COM(2007)548 final - that has just appeared covers the activities of the Commission in 2005. And it is the fourth such report. The last report, covering 2004, was published in 2005.

The report contains a useful summary of Ombudsman complaints, judgments of the Court of First Instance and cases pending before the Court of First Instance. There is also a statistical annex which shows that there were 3 173 initial requests for documents in 2005, up from 2 600 in 2004. Most requests are granted at the initial stage (68%), 23.5 % of initial refusals are partially revised and 8% revised in full at the confirmatory stage. The most popular area is that of antitrust (12.7 %) and only 1.24% of requests come from persons from non-European countries. Not a single request from the USA in 2005 !

Civil Service Tribunal: Instructions to the Registrar

After its new Rules of Procedure we noted a short while ago, the Civil Service Tribunal has issued "Instructions to the Registrar". They concern the organization of the Court's Registry and how the docket is managed.

These "Instructions" are similar to those of the Court of First Instance we noted here.

Except that there is no provision at all for any semblance of public access to the file.

Statutory Interpretation in the EC: St. Augustine helps out

Professor Lawrence Solan of the Brooklyn Law School has recently published an interesting and original article on statutory interpretation in EC law. Clearly, interpreting statutes drafted in so many languages creates a number of problems. Professor Solan's approach is to find inspiration in the works of St. Augustine.

Here's what the abstract states:

EU legislation is written in all of the EU's official languages. Each version is authoritative, and no version is privileged as "the original," at least not as an official matter. The existence of a regime of multilingual legislation appears to create a daunting task for a court that must resolve disputes over a statute's applicability in a particular situation. The opportunity for inconsistencies among the various language versions is so profound that it would not be surprising if the entire system collapsed under its own weight.

But that has not happened. Whatever problems face Europe and the EU, statutory interpretation is not high on the list. On the contrary, the European Court of Justice resolves disputes among member states in what appears to be a routine manner. In this article, I argue that the proliferation of languages actually assists the interpretation of statutes by the ECJ. To the extent that the goal of the court is to construe statutes to effectuate the intent of the legislature and to further the goals of the enacted directive or regulation, the existence of so many versions of the law makes this task easier. In the manner of St. Augustine, the ECJ looks at several versions of the statute, and then triangulates. Using advances in linguistics, cognitive psychology and philosophy, I explain how this process can serve to reduce the universe of plausible interpretations, thus making statutory interpretation more faithful to the goals of the enacting legislature.

Highly recommended. You can download the article here.

Judge Marc Jaeger Elected President of the Court of First Instance

Judge Marc Jaeger from Luxembourg has been elected the new President of the Court of First Instance.

His appointment is for a term from September 17th 2007 to August 31st 2010. He succeeds Bo Vesterdorf who retires today.

He has been a judge at the Court of First Instance since July 11th 1996.

Here is a press release with a brief resume.

Congratulations !

Legal Professional (Attorney-Client) Privilege and In-house Counsel: Joined Cases T-125/03 & T-253/03

A good day for the Commission !

The Court of First Instance held that only communications between a client and independent counsel could be covered by attorney-client privilege or legal professional privilege as it is known in Europe.

In Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v. Commission the Court of First Instance dismissed the claim that communications with employed lawyers should also be covered by the privilege.

What happened was this. The Commission ordered Akzo Nobel Chemicals Ltd and its subsidiary, Akcros Chemicals Ltd, to submit to an investigation in February 2003 seeking evidence of any anti-competitive practices. That investigation was carried out by Commission officials.

In the course of the investigation Akzo's representatives informed the Commission officials that certain documents were likely to be covered by the rule protecting the confidentiality of communications between lawyers and their clients. The head of the investigating team briefly examined the documents in question, with a representative of the applicants at her side. But, during the examination of the documents, a dispute arose in relation to five documents. Interestingly, some of the documents were exchanges between the general manager and Akzo Nobel’s coordinator for competition law, who was enrolled as an Advocaat of the Netherlands Bar and was a member of Akzo Nobel’s legal department, employed by that undertaking on a permanent basis.

Akzo claimed that those documents were covered by legal professional privilege because the lawyer involved was a member of the Bar even though he was a salaried employee of the company.

The Court of First Instance rejected the argument by Akzo Nobel and Akcros concerning extension of the personal scope of protection of confidentiality of communications between lawyers and their clients to include in-house counsel. It refused to go beyond the limits laid down by the Court of Justice in Case 155/79 AM & S v. Commission. The Court of Justice expressly held in that earlier case that the protection only applies to the extent that the lawyer is independent, that is to say, not bound to the client by a relationship of employment, and expressly excluded communications with in-house lawyers. The Court of First Instance states that, even though it is the case that specific recognition of the role of in-house lawyers and the protection of communications with such lawyers is relatively more common today than when AM & S was decided, it is not possible, nevertheless, to identify tendencies which are uniform or have clear majority support in that regard in the laws of the member States. The evolution of antitrust law since that judgment does not justify an alteration of that case-law: it is not contrary to the principle of equal treatment or the free movement of services. Consequently, the Court of First Instance held that the exchanges with a member of Akzo Nobel’s legal department should not be covered by the protection of confidentiality of communications between lawyers and their clients.

The Court of First Instance did however criticize the procedure used by the Commission investigators in the event of a dispute over whether a document is privileged or not. It held that the undertaking investigated cannot be compelled to reveal the contents of the documents in dispute when it presents the Commission officials with relevant material to demonstrate that they are privileged. The mere fact that the Commission reads the content of a privileged document is in itself a breach of the privilege in question. Thus, the Commission officials cannot take even a cursory look at the documents which are claimed to be privileged, if the undertaking considers that such a cursory look is impossible without revealing the content of those documents and that it gives the Commission officials appropriate reasons for its view. Where the Commission considers that the material presented by the undertaking is not of such a nature as to prove that the documents in question are privileged, its officials may place a copy of the document in question in a sealed envelope and then remove it with a view to a subsequent resolution of the dispute. The Court of First Instance further held that the Commission is not entitled to read the contents of the document before it has adopted a decision allowing the undertaking concerned to refer the matter effectively to the Court of First Instance.

Although the Court of First Instance found that the Commission's procedure was faulty, the outcome of the case was unaffected as the documents involved were not privileged in any event.

Finally, the Court of First Instance made some interesting comments about the types of privileged documents. Internal company documents, even if they have not been exchanged with counsel or have not been created for the purpose of being sent to counsel, may nonetheless be covered by protection of confidentiality of communications between lawyers and their clients, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence. But the mere fact that a document has been discussed with a lawyer is not sufficient to give it such protection. The Court adds that the fact that a document has been put together under an antitrust law compliance program does not suffice by itself to confer protection on that document. Such programs often encompass in their scope duties and information which go beyond the exercise of the rights of defence.

Microsoft Judgment and Abuses of a Dominant Position: Case T-201/04

The Court of First Instance upheld the Commission's decision of March 23rd 2004 finding that Microsoft infringed Article 82 EC by abusing its dominant positions and which imposed a fine of over €497 million (about US$ 679 million).

President Vesterdorf retires with a bang by handing down a mega long judgment comprising 1373 paragraphs and running to over 270 pages in Case T-201/04 Microsoft v. Commission finding that the Commission was right to conclude that :
- Microsoft had abused its dominant position on the work group server operating system market by refusing to supply its competitors with ‘interoperability information’. The Commission required Microsoft to disclose the ‘specifications’ of its client/server and server/server communication protocols to any undertaking wishing to develop and distribute work group server operating systems,
- Microsoft had also abused its dominant position on Windows PC operating system market by tying the Windows Media Player with the operating system itself. The Commission required Microsoft to offer for sale a version of Windows without Windows Media Player.

Because those aspects of the judgment are sure to be covered elsewhere extensively there is no need to go into any greater detail now.

One aspect of the judgment is particularly interesting. That is the bit concerning the appointment and powers of the trustee (for the decision, see here and further information, here). To assist it in monitoring Microsoft’s compliance with the decision, Commission appointed a monitoring trustee. His primary responsibility was to issue opinions, upon application by a third party or by the Commission, or on his own motion, on whether Microsoft was complying with the decision and on any issue that might be of interest with respect to the enforcement of the decision. He was to have access to Microsoft’s assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products. All the costs associated with the monitoring trustee, including his remuneration, were to be borne by Microsoft.

The Court of First Instance held that the Commission exceeded its powers by establishing the mechanism of a monitoring trustee with his own powers of investigation and capable of being called upon to act by third parties. Consequently, the Court of First Instance annuls the decision in so far as it orders Microsoft to submit a proposal for the appointment of a monitoring trustee with the power to have access, independently of the Commission, to Microsoft’s assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products and in so far as it provides that all the costs associated with that monitoring trustee be borne by Microsoft.

The Court of First Instance found that the Commission has no power to compel Microsoft to grant to a monitoring trustee powers which the Commission itself is not authorised to confer on a third party. It also held that there is no provision of EC law that authorizes the Commission to require an undertaking to bear the costs which the Commission itself incurs as a result of monitoring the implementation of remedies.

The question is how the Commission will implement the judgment as far as the monitoring trustee is concerned and how much of the aftermath of the decision is contaminated.

For previous posts on Case T-201/04 see here and here.

Damages for Breach of Data Protection Regulation by OLAF: T-259/03

The Commission's anti-fraud office, OLAF, has a reputation for carrying out investigations in a manner unworthy of a public authority in a modern, liberal, democratic society. For an example of its modus operandi, see our post here.

In a discreet judgment, the Court of First Instance has found the Commission liable in damages for egregious breaches of the Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. In its judgment in Case T-259/03 Kalliopi Nikolaou v. Commission, the Court of First Instance ordered the Commission to pay €3 000 (US$4,165.65) in compensation because OLAF leaked information about its investigation and published derogatory statements about Ms. Nikolaou which, although they did not name her expressly, were such that she could be identified personally.

Ms. Nikolaou had originally claimed €900 000 (US$ 1,249,559) in damages. The Court of First Instance finally awarded a very low amount because it found that the other instances of illegal conduct by OLAF had not actually caused the loss and damage claimed.

This is the first judgment awarding damages for a breach of Regulation 45/2001. It is a shame that it is only available in Greek and French in summary form. The Court published a press release in French which gives much more information than the judgment.

Public access to court pleadings: Case T-36/04

What a plethora of judgments and orders today! Let us just take them one by one, starting with the judgment of the Court of First Instance, Grand Chamber no less, finding that the Commission was wrong to refuse to disclose certain pleadings lodged before the EC courts to the public.

In its judgment in Case T-36/04 API v. Commission the Court of First Instance mostly upheld the claim by a group of journalists that public access should be granted to pleadings which the Commission had lodged in certain cases before the Court of First Instance itself and before the Court of Justice.

Regulation 1049/2001 grants members of the public a general right of access to documents of the institutions. But it provides for exceptions to that general principle, in particular where disclosure of a document would undermine the protection of court proceedings or the purpose of investigations, unless there is an overriding public interest in disclosure.

API, a group of foreign journalists based in Belgium, asked the Commission for access to all the written submissions made by the Commission to the Court of First Instance or the Court of Justice in a number of cases. The Commission granted access to the pleadings in preliminary reference cases but refused to disclose the pleadings in direct actions. It justified the refusal on the grounds that in some cases disclosure would adversely affect the pending court proceedings, harming inter alia its position as a party and the serenity of the debate. It also refused to grant access in a case that was closed because disclosure of its pleadings would adversely affect other proceedings, which were still pending. It refused to disclose the pleadings in infringement cases because, even though those cases had been closed by judgments of the Court of Justice finding that the member States concerned had failed to fulfil their obligations, those States had not yet complied with the judgments, so negotiations were still in progress to bring the infringements to an end. Accordingly, disclosure could prejudice the investigations relating to those infringements.

The Court of First Instance largely disagreed with the Commission and partially (but mostly) annulled its decision refusing access. It held that when a case had reached the stage of the oral hearing, for which a report for the hearing is produced and is available to the public, the Commission could no longer invoke an exception to the general right of public access, such as the protection of court proceedings or the purpose of investigations, for whole categories of documents. The Commission, the Court held, had to justify any refusal in respect of each document.

But the Court of First Instance did uphold the Commission's refusal to disclose pleadings in respect of cases that were still pending and which had not yet reached the oral procedure at the time of the request.

Of course, the judgment is a bit more complicated than that and you should read the whole thing. The Court has also put out a good press release that gives more detail.

The API itself is still not satisfied...

TRIPs Agreement, Direct Effect and Patents: Case C-431/05

The Court of Justice handed down a neat judgment on the direct effect in national law of Article 33 of the TRIPs Agreement.

The Court held in Case C-431/05 Merck Genéricos Produtos Farmacêuticos that it is not contrary to EC law for Article 33 of the TRIPs Agreementto be given direct effect in national law and be applied directly by a national court. The Court also held that it had jurisdiction to interpret Article 33 of the TRIPS Agreement to ascertain whether it is contrary to EC law for that provision to be given direct effect.

Article 33 of the TRIPs Agreement, as everyone surely knows, is in the section on patents and stipulates :

"The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date."

Hands up all those who did not know that.

The Court held that the WTO Agreement, of which the TRIPs Agreement forms part, was signed by the Community and subsequently approved by Decision 94/800. Therefore, according to settled case-law, the provisions of that convention form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA, paragraph 36, and Case C-459/03 Commission v Ireland, paragraph 82). Within the framework of that legal order the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement (see, Case 12/86 Demirel, paragraph 7).

Because the TRIPs agreement was concluded by the EC and its member States by virtue of joint competence without any allocation between them of their respective obligations towards the other contracting parties, what is decisive in deciding whether the Court of Justice has jurisdiction to interpret the particular stipulation of the TRIPs Agreement is whether the EC has legislated in the field covered by it.

When the field is one in which the EC has not yet legislated and which consequently falls within the competence of the member States, the protection of intellectual property rights and measures taken for that purpose by the judicial authorities do not fall within the scope of EC law, so that the latter neither requires nor forbids the legal order of a member State to accord to individuals the right to rely directly on a rule laid down in the TRIPs Agreement or to oblige the courts to apply that rule of their own motion (Joined Cases C-300/98 and C-392/98 Dior and Others, paragraph 48).

On the other hand, if the EC has enacted rules in the sphere in question, EC law will apply. That means that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement (see, Dior and Others, paragraph 47), although no direct effect may be given to the provision of that agreement at issue (Dior and Others, paragraph 44).

In order to answer the question whether there is or there is not any EC legislation covering the subject matter of the TRIPs Agreement, the Court held that a uniform answer at the EC level is required thus justifying giving the Court of Justice exclusive jurisdiction to answer it.

In this case, the Court held that there are no rules on the EC level specifically covering the subject matter of Article 33 of the TRIPs Agreement. Accordingly, the member States remain competent and they can decide whether or not Article 33 has direct effect. It is not contrary to EC law to give that provision direct effect in national law but of course, EC law does not require it to have direct effect.

This judgment will surely be remembered also for containing one of the best and inadvertently funny one line paragraphs:

"As Community law now stands, there is none."

Another terrorism judgment and the UN Security Council Resolution 1373: Cases T-47/03 and T-327/03

Catching up on some past cases !

The Court of First Instance has once more struck down Council decisions including certain persons or organizations on a list requiring their assets and funds to be frozen. In Case T-47/03 Jose Maria Sison and Case T-327/03 Stichting Al-Aqsa v. Council, the Court of First Instance held that the Council had not respected certain fundamental rights and safeguards by adopting the decisions requiring the funds of the plaintiffs to be frozen. In particular, no reasons were given for the decisions and the rights of the defense of the persons or organizations concerned were not respected prior to the adoption of the decisions.

Those two judgments are very similar to Case T-228/02 Organisation des Modjahedines du peuple d'Iran v. Council we had noted up here.

An interesting extra point came up in Case T-47/03. Sison not only requested the annulment of Council Decision 2002/974/EC but also claimed compensation for the loss and damage suffered as a consequence of it. However, the Court annulled that decision on procedural grounds. The Court of First Instance confirmed failure to fulfill the obligation to state reasons is not, in itself, such as to cause the Community to incur liability (Case T‑18/99 Cordis v. Commission, paragraph 79). the fundamental principle that the rights of the defence must be observed being essentially a procedural guarantee (Case C‑344/05 P Commission v De Bry [2006] ECR I‑10915, paragraph 39), the Court considers that, in the circumstances, annulment of the contested act will constitute adequate compensation for the damage caused by that breach (see, Joined Cases T‑120/01 and T‑300/01 De Nicola v BEI, paragraphs 140 to 142).

Both cases concerned UN Security Council Resolution 1373 of 2001 calling on all UN members to combat terrorism and the financing of terrorism by all means, in particular by freezing the funds of persons who commit, or attempt to commit, terrorist acts. That resolution did not identify the persons and entities in question but left it to the member States to identify them. To implement the Resolution 1373 (2001), the EC adopted Common Position 2001/931/CFSP and Council Regulation 2580/2001 ordering the freezing of the assets of the terrorist organizations included in a list. That list is to be updated regularly. An organization is included in the list on the basis of precise information in the file which indicates that a decision has been taken by a competent national authority, usually a judicial authority. The names of persons and entities on the list are to be reviewed at regular intervals and at least once every six months to ensure that there are still grounds for keeping them on the list. Sison was included on the list by Council Decision 2002/974/EC. Al-Aqsa, a Dutch group, was confirmed on the list by Council Decision 2003/646/EC.

Jose Maria Sison was also involved in litigation concerning public access to documents which culminated in the judgment of the Court of Justice in Case C-266/05 P Sison v. Council which we had noted here.

See our post of April 26th 2007 on the Council Notice creating certain procedural rights in cases such as these.