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...