Advocate General’s Opinion in Grupa Azoty again lays bare a serious gap in EU judicial protection, yet does nothing to plug the hole

 

Professor Geert van Calster, University of Leuven

Photo credit: Wojciech Antosz, via Wikimedia Commons

 

Executive summary: Early March Pikamäe AG opined in Joined Cases C 73/22P and C 77/22 P Grupa Azoty S.A. et al v European Commission, an Appeal procedure regarding the admissibility of an application for partial annulment of the Commission September 2020 ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Pikamäe AG considers that the Applicants do not have standing to challenge the Guidelines at EU level. I challenge that position, in the light of the right to judicial review before the European Courts and of the Courts' case law on the matter. I conclude that the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice, and that in doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.

 

Introduction to the case at issue

In early March Pikamäe AG opined in Joined Cases C‑73/22P and C‑77/22P Grupa Azoty S.A. et al v European Commission. At first glimpse the case undoubtedly looks pretty dull to most observers, seeing as it engages an application for partial annulment of the Communication from the Commission of 25 September 2020 entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Hardly rock and roll. Such aid is generally granted to address potential ‘carbon leakage’, i.e. relocation of industry away from the EU and its stricter climate rules. The applicants manufacture fertilisers, nitrogen compounds, and man-made fibres, a sector not listed in Annex I to the guidelines at issue. This means they are no longer (for the sector was included in the previously applicable Annex II of the 2012 Guidelines) considered to be at risk from carbon leakage.

The General Court having declared the applications inadmissible due to lack of standing, the case has now come before the Court of Justice upon appeal.

A core element in the General Court’s reasoning was [40-42] that the undertakings’ right to challenge the removal from the Annex and their consequential loss of potential State Aid, continued to be guaranteed seeing as Member States may still grant them such aid outside of the Guidelines’ framework, subject to notification to the European Commission. The likely refusal by the Commission to declare the aid compatible with the Internal Market, may then, the General Court suggested, be challenged before the European Courts.

It is this speculative reasoning which raises general concerns with respect to access to justice before the European Courts.

 

General framework for access to judicial review before the European Courts

Access to judicial review proceedings at the Court of Justice of the European Union (CJEU) is a long contested issue. Article 263 TFEU grants EU Institutions ‘privileged access’ to the European Courts. These are included in paragraphs 2 and 3 of the Article and they are the Member States, the Council, the Commission, the European Parliament, the Court of Auditors, the European Central Bank and the Committee of the Regions. The latter 3 Institutions may only bring an action "for the purpose of protecting their prerogatives".

The fourth paragraph of Article 263 TFEU deals with the so-called "non-privileged" applicants. In the General Court’s Order in the case under discussion, standing requirements for the non-privileged applicants are summarised as follows [26]:

“The admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them..” (references to case-law omitted).

 

Direct concern. The condition of "direct concern", while a hurdle, is not their main stumble block for standing. Indeed for a person to be directly concerned by a Union act, the measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being pure, automatic and resulting from Union rules without the application of other intermediate rules. This is recurrent case law, going back in particular to the 1978 Simmenthal judgment.

Individual concern.  The condition of "individual concern", turned out to be much more of roadblock. The approach of the Court is known as the "Plaumann" test, after a 1963 case involving a German importer of clementines. The CJEU held in Plaumann that

"(p)ersons other than those to whom a decision is addressed, may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed."

This test is difficult enough on paper itself. However in practice it has become even more stringent in that for economic operators, the Court typically holds that these are affected by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested measure as in the case of the addressee. The Plaumann test essentially amounts to a "closed shop" test: to be individually concerned by a decision addressed to another person (including Regulations and Directives addressed to Member States), an applicant needs to show that it is part of a "closed circle of persons who were known at the time of its adoption"  (a much repeated formula, e.g. in Federcoopesca).

 

The second alternative for standing in the case of non-privileged applicants (actions viz regulatory acts not entailing implementing measures if that act is of direct concern to them) obviously drops the strict ‘individual concern’ requirement and was introduced with the Treaty of Lisbon. In PGNiG Supply, the General Court held [54] that the condition

“is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual whose legal situation is nevertheless directly altered by an act from being denied effective judicial protection with regard to that act. In the light of that objective, it appears that the third limb of the fourth paragraph of Article 263 TFEU is designed to apply only when the disputed act, in itself, in other words irrespective of any implementing measures, alters the legal situation of the applicant.”

The core to this argument of the General Court’s order, is quite clearly and as it emphasises itself, the rule of law’s core contention of ensuring effective judicial protection.

It is on this point that I should like to take issue with Pikamäe’s Opinion in Grupa Azoty.

 

The challenge with the AG Opinion

—The AG’s suggestion (32) that the Court for the first time needs to hold on the potential to challenge Commission State Aid guidelines is, with respect, neither here nor there. The standing requirements for judicial review necessarily focus on the content of the measure, regardless of their nomenclature. The Guidelines at issue are developed in such detail and, importantly, with the specific instruction not to grant aid to non-Annex sectors, that one fails to see where the Member States’ discretion may at all lie. The AG’s reference (35) ff to the legal nature of guidelines, circumscribed only by general principles of EU law such as proportionality, are sophistic at best, and his continued use of the word ‘soft-law’ for Guidelines of this kind obfuscates their true impact.

—The AG’s justification of the General Court’s abstract reasoning as fitting perfectly within the Court’s existing case-law, may be arguable at a theoretical level in the light of the CJEU authorities. Yet it fails to consider the practical impact of the Guidelines. At this point, it is useful to remind ourselves of the consequences of the standing rules in the perhaps more rock and roll area of environmental law.

The impact of the restrictive approach to standing in the area of environmental law, paved the way for Advocate General Jacob’s Opinion in Union de Pequenos Agricultores (UPA) – not followed by the Court, and to what was then the Court of First Instance’s judgment in Jégo-Quéré. The Court of Justice however rejected the AG’s and CFI’s attempts to broaden access in Greenpeace.

Regardless of whether the CJEU was correct in Greenpeace (I would submit it was not), at least its optimistic presumption in that case that access to effective judicial protection is guaranteed via the preliminary reference procedure, somewhat cynically bears out in practice. The route via national courts presupposes that the Union measure at issue requires acts of implementation by the national authorities. This often then obliges the individual concerned to engineer a violation of the rules laid down by the measures, and subsequently use invalidity as a defence in any criminal or civil action directed against it. As Advocate General Jacobs argued, it would seem unacceptable that individuals be required to break the law, in order to gain access to justice. Yet, at least this engineered route is often available.

In the scenario at issue in Grupa Azoty, that prospect is fanciful. One cannot engineer a breach of State Aid rules in the entirely speculative case that a Member State does, despite the clear instructions in the guidelines, grant aid outside of it.

—Importantly, the AG in his final considerations puts the access to justice cart before the horse, where he argues

“whilst I am aware of the prevailing opinion regarding the need to expand the routes by which individuals access justice at EU level, I question whether it would be desirable, in general, for the Court to find that a soft law instrument like the guidelines at issue is a challengeable measure, and that any competitor that is able to show that it satisfies the requirement of direct concern, as identified in the judgment in Montessori, is thus entitled to bring a legal challenge where that measure constitutes a ‘regulatory act’ within the meaning of the last paragraph of Article 263(4) TFEU. I would note in this regard that, because they can be adopted quickly and adapted to contingent economic situations, these soft law instruments have been used, for example, to frame the Member States’ response to the recent crises caused by the collapse of the banking system, the COVID-19 pandemic and the outbreak of the war in Ukraine. In such situations, could the Commission be expected to adopt measures to make the exercise of its discretion more foreseeable and transparent knowing that the lawfulness of certain provisions can be directly challenged before the General Court? Could an increase in the number of those actions, which would then seem easily foreseeable, not paralyse the Commission’s clarificatory action? Is the revision of the problematic provisions of those measures by the Commission itself not sufficient for the economic operators concerned?”

 

With respect, first of all the practical implications of granting in the case at issue a circumscribed group of applicants standing, are exceedingly minimal. Under the current Guidelines only a very small group of operators have lost potential State Aid to which they had access under the previous ones. More fundamentally, practical management of access to courts necessarily must follow that very access being guaranteed — not the other way around: access must not be circumscribed by its practical management.

 

In conclusion, the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice. In doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.  

New EU Directive on Whistleblower Protection

Vigjilenca Abazi, Assistant Professor of EU Law, Maastricht University & Fellow, Yale Law School

*The author is the co-author of the model Directive presented at the European Parliament in May 2016.

With an overwhelming majority, the European Parliament on 16 April voted in favour of the new law to protect whistleblowers in the European Union. The Directive sets leading standards and has become a prime example of how a concerted effort by civil society – NGOs, trade unions, journalists, scholars, and whistleblowers – together with the European Parliament can lead to progressive legislation and enhance tools that safeguard the rule of law in Europe.  

‘Promoting Gold Standard Protections’ 

Prior to this Directive, whistleblowers faced a paradoxical situation in Europe: they would be prosecuted at the national level, whilst celebrated for ‘promoting European values’ at the EU level, as in the case of LuxLeaks whistleblower Antoine Deltour. The European Parliament called upon the Commission to propose legislation since 2013, yet the Commission had rejected the calls noting lack of EU competences to legislate. The Council was also sceptical, as many member states do not have national laws in place. A key turning point was the presentation of the model Directive promoted by the Greens & European Free Alliance at the European Parliament in 2016. Protecting whistleblowers became inevitable after the EU witnessed the murder of two journalists, Daphne Galizia in Malta and Jàn Kuciak in Slovakia, who exposed corruption in their respective countries.

     

The Directive provides significant improvement in protecting whistleblowers and moves Member States closer toward an advanced legal framework. Indeed, as noted by the world’s leading NGO for whistleblowing, the Whistleblowing International Network, the EU ‘has raised the bar for all EU governments to lead the world in promoting gold standard protections for whistleblowers’ or as Commissioner Jourová remarked these ‘rules will be a game changer’.

The Whistleblower

The Directive covers workers in the public and private sector. More specifically, it includes civil servants, the self-employed, shareholders, management, administrative or supervisory bodies, volunteers, paid or unpaid trainees, contractors, subcontractors and suppliers, individuals disclosing breaches during a recruitment process and former workers. The Directive does not encompass EU officials. For a worker to be able to invoke the protection granted by this Directive, the worker must have reasonable grounds to believe that the information reported was true at the time of reporting and that the information fell within the scope of the Directive.

Wide Ranging Policies

The Directive has a wide scope of protection not only in terms of who can be a whistleblower, but also in terms of policies that it covers. The Commission drew from many different Treaty provisions to ensure that reporting gaps are not created, although the disclosure should be related to a breach or abuse of EU law in any of the following issues: public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues. Strictly national policies are not covered and neither are violations of worker’s rights and working conditions. The latter exclusion will be reviewed in future.

Disclosure Channels

One of the most contested points since the Commission proposed the Directive last year is whether protection will be made conditional on the whistleblowers first reporting internally. The Commission proposal set out a three tier reporting process, and it envisaged a mandatory disclosure first and foremost internally in the organisation. Not only was such a proposal counter to the case law of the European Court of Human Rights on the issue, but also it would have caused more harm than good, especially in Member States that have legislation in place and do not demand such strict channels.

Indeed, the role of civil society cannot be stressed enough in this regard, as it played an invaluable role in making sure that the European Parliament amended the mandatory internal reporting. EP rapporteur Rozière understood these concerns and ensured that this piece of EU legislation meets the adequate standards rather than create uncertainty in legal protection. Making this her “biggest” priority, she succeeded in defending whistleblowers to choose the best means available for disclosure. The adopted Directive foresees that whistleblowers would be protected for reporting internally or for reporting directly to regulators and competent authorities. Reporting to the public still has strings of conditions, but if there were a risk of retaliation or low prospect of the reported breach to be addressed, whistleblowers would be protected if they reported to the public. 

Applicable to Businesses and Public Administration

The Directive applies both in the private and public sector, including to local authorities. Channels for reporting must be set up by companies with more than 50 employees. Local authorities that have less than 50 employees or municipalities with less than 10,000 inhabitants are exempt from the obligation to set up channels of reporting. More guidance on how local and regional authorities should ensure protection for whistleblowers could nevertheless be found in a Resolution of the Council of Europe, which was also voted with sweeping majority earlier in April 2019 by the Congress of Local and Regional Authorities, laying out in detail recommendations and the most recent data on the matter. 

Implementation and Practice

A good law in the books is of little use if its implementation in practice falls short. It will be of outmost importance that the Member States transpose this Directive in its full spirit and even push higher standards where possible. Member States will have two years to transpose the Directive to national law and civil society will continue to monitor closely and possibly facilitate national debates in how whistleblowers should be protected. After the scandals of LuxLeaks, PanamaPapers and Cambridge Analytica, citizens are becoming increasingly aware that whistleblowers play a crucial role in exposing wrongdoing and should not pay a personal price for defending public interest. National governments should take note of this public opinion and implement the EU Directive to its fullest.

Photo credit: The Guardian Nigeria

Does the Prime Minister’s Unexpected Discussion of Competition Policy Signal a Softening of Brexit?

Andreas Stephan, Professor of Competition Law & Head of UEA Law School, University of East Anglia*

On Friday 2 March 2018, in a much-anticipated speech meant to give clarity to the UK Government’s Brexit objectives, the Prime Minister suggested that: (a) UK State Aid and Competition rules could remain aligned with those of the EU, and (b) UK courts could continue to have regard to judgments of the European Court of Justice (ECJ). Nevertheless, her speech also made it abundantly clear that the ECJ could not continue to have jurisdiction over the UK. While, on the face of it, this speech appears to reiterate Theresa May’s commitment to a ‘hard Brexit’, these significant concessions may signal a weakening of that resolve, as the Government acknowledges for the first time that – if the UK is to maintain a close trading relationship with the EU – the legal realities of Brexit will be complicated.  

Even before the PM delivered her speech, the Government confirmed it was targeting a border with the EU that was as ‘frictionless’ as possible. Yet it also maintained very hard lines on taking back control of immigration and denying the ECJ any continued jurisdiction over UK courts and laws. This appeared to make a trade agreement – i.e. something akin to the EU-Canada Comprehensive Economic and Trade Agreement (CETA) – the only viable option for the UK.

What has brought the realities of a hard Brexit into sharp focus are concerns over the border between the UK and the EU in Ireland. A return to customs checks (a ‘hard border’) could jeopardise the peace process in Northern Ireland. Yet the most sensible solution (giving NI a special semi-autonomous status of being part of the UK but also in regulatory alignment with the EU) risks bringing down the Conservative Government. They rely on the voting support of the Democratic Unionist Party, who want NI to have exactly the same Brexit settlement as Great Britain, so as to ensure the outcome does not increase the likelihood of an eventual Irish reunification.

So most commentators were expecting a softening in the Prime Minister’s stance last week, but few were expecting that softening to take the form of a discussion of competition policy. She began by making an important statement about the future influence of ECJ case law on UK law:

The second hard fact is that even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us… When we leave the EU, the Withdrawal Bill will bring EU law into UK Law. That means cases will be determined in our courts. But, where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts. And if, as part of our future relationship, Parliament passes an identical law to the EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently.

She then went further, using competition policy to illustrate her point:

If we want good access to each other’s markets, it has to be on fair terms. As with any trade agreement, we must accept the need for binding commitments – for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s. The UK drove much of the policy in this area and we have much to gain from maintaining proper disciplines on the use of subsidies and on anti-competitive practices.

These statements are significant because they represent the Government’s first significant departure from its characterisation of Brexit as a simple ‘in/out’ choice. What the Prime Minister is suggesting above, goes well beyond what might be expected from WTO rules (which do not include competition provisions per se) or from a Canada-style trade agreement.

For example, CETA contains a recognition of the importance of Competition policy to trading relations and the responsibility of each party to apply its domestic competition law. There is no requirement of equivalence in rules – indeed, EU and Canadian competition laws are very different in a number of respects. In terms of State Aid, the agreement requires parties to report certain subsidies to each other every two years and a non-binding mechanism through which each party must try and minimise the adverse effects of the subsidy on the complaining party’s interests. There is no requirement of pre-authorisation rules similar to those under EU State Aid Law.

Continued Supremacy of EU Law by the Backdoor?

In the first academic paper to be published on Competition Policy after Brexit, we identified that there was a strong advantage in UK competition law remaining closely aligned to EU law, so as to minimise the regulatory burden on businesses operating in both jurisdictions.** We also noted that it was not unusual for UK courts to consider the jurisprudence of closely related jurisdictions (such as Australia and New Zealand) when dealing with novel questions of law, even though they were under no obligation to do so. This was echoed in the work of the Brexit Competition Law Working Group (Issues Paper (October 2016) and Conclusions and Recommendations (July 2017), as well as in Richard Whish’s recent contribution to the House of Lords European Union Committee report on ‘Brexit: Competition and State Aid’. Whish suggested that, at the very least, UK authorities should be required to ‘have regard to’ EU law and precedent.

The Prime Minister’s statement, in fact, goes even further. The idea that competition and state aid rules should ‘remain in step’ may suggest a de facto obligation on UK authorities to follow EU jurisprudence. Indeed, the suggestion that Parliament might have to ‘adopt identical law to the EU’ also implies that – after Brexit – EU law will have a far greater influence on the UK than had been anticipated. Yet all this will occur without the UK having a say in the creation of new EU rules or the decisions of the ECJ, except via the limited levers that will be available through the trading agreement itself. As the junior partner in the relationship, the UK will largely become a rule-taker, reminiscent of the role that other small jurisdictions are forced into when dealing with much larger trading partners.

Without the UK’s continued participation in European Union institutions, the UK’s designated competition authority, the CMA, may find itself having to replicate the European Commission’s work, while being simultaneously bound to produce the same outcomes – something that would clearly constitute a waste of administrative time and taxpayer’s money. The Prime Minister herself acknowledged that the UK ‘drove much of the policy’ in EU Competition Law. Yet, it is precisely for this reason that EU competition policy will not necessarily continue along the same path we expect it to. With the UK’s influence gone, it may become less free-market oriented and begin to depart from its effects-based approach. Similarly, the EU rules surrounding State Aid (which, as we point out in our paper, the UK is a clear net beneficiary of) may become more relaxed.

Conclusion: The beginning of a soft Brexit?

In conclusion, the Prime Minister’s discussion of competition policy is very sensible from a business perspective. A commitment to UK and EU competition and state aid rules remaining closely aligned will provide certainty and reduce the regulatory burden on firms wishing to invest in the UK. But, from a legal perspective, the speech raises more questions than it answers. What will the precise obligation be on UK authorities to stay closely aligned to EU rules? Under what circumstances will Parliament need to enact laws ‘identical’ to those of the EU? Will Competition Policy have a special status, or will this sort of arrangement extended to other areas? Will the UK accept being a ‘rule-taker’, or does the Government expect to have some leverage over European lawmaking through the wording of the final agreement?

Now the door to continued alignment with EU rules has been opened slightly, many of the questions we thought were resolved (about the autonomy of UK law after Brexit) are now open once more. Indeed, the Prime Minister’s speech came only a week after the opposition Labour Party said it would pursue a Customs Union arrangement if it was elected to Government. The prospect of a softer Brexit now looks more conceivable than it did a few months ago; and it may all have started with a few seemingly innocuous words about competition policy.

Barnard & Peers: chapter 27, chapter 17

Photo credit: hifi-forum.de

*Reblogged from Competition Policy Blog

**B Lyons, D Reader and A Stephan, ‘UK Competition Policy post-Brexit: taking back control while resisting the siren calls’ (2017) Journal of Antitrust Enforcement 5(1), pp. 347-374. An early draft is available as: ‘UK Competition Policy Post-Brexit: In the Public Interest?’ (2016) CCP Working Paper 16-12.

EU decision-making becomes a little more open: access to background documents drafted by consultants

Steve Peers

‘[The plans were] on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying, “Beware of the Leopard”!’

Arthur Dent, The Hitch-Hiker’s Guide to the Galaxy

Much of what the EU does is controversial. Think, for instance, of the free trade negotiations with the USA (TTIP), the regulation of many items from vacuum cleaners to genetically modified food, and the supervision (or sometimes control) of Member States’ tax and spending decisions. The substantive content of the decisions the EU makes on these issues will always disappoint someone, but in addition to that, there has long been a concern that the EU decision-making system is not sufficiently transparent. This has undoubtedly contributed to the broad feeling that the EU lacks legitimacy.

Back in 2001, the EU tried to address this by adopting a Regulation on access to documents drawn up by, or held by, the Commission, Council and the European Parliament. Attempts to amend this legislation have failed so far, so its application in practice depends on the extensive case law of the EU courts.

Some of this case law is excellent, and some is (with great respect) rather problematic. Fortunately, today’s important judgment of the EU’s General Court in the Mastercard case falls within the former category. The Court ruled in favour of access to background documents for EU decision-making drawn up by consultants, and so has significantly increased access to information on EU decision-making process.

Judgment

Mastercard applied to the Commission for some of the background documents drawn up by a consultant (EIM), which had been supplied to the Commission by EIM as part of the process of drafting a report on the impact of the costs and benefits for retailers of accepting different payment methods. The Commission refused access to the documents, on the grounds that it had not yet made a decision on the issues concerned (the ‘decision-making’ exception), and that the documents contained information on the commercial interests of the consultant.  

The General Court rejected both of the Commission’s arguments. On the first point, the documents in question did not relate directly to any specific Commission decision-making process as regards the application of EU competition law, but rather aimed to supply the Commission with more general information to inform it on the economic issues. Also, the Commission had not relied on this exception when initially refusing access to the documents. Furthermore, it didn’t matter for the purpose of the access to documents rules that the documents were interim, and the Commission had in any event shared most of the documents concerned with stakeholders.

On the second point (commercial interests of the consultant), the Court reiterated prior case law that the exception did not apply to any information about a business, but only to sensitive information concerning issues such as business strategy, sales figures et al. Applying that case law to the facts of this case, the Court did not accept the Commission’s argument that revealing the ‘trial and error’ in the draft documents produced by the consultant  would undermine its commercial reputation or reveal its secret methodology to its competitors.

So the Commission fully lost the case, and so the documents have to be released – although the Commission has two months to appeal to the Court of Justice if it wishes to.

Comments

While much of the case law on access to documents concerns the Commission, which has most of the administrative and executive power at EU level (except as regards aspects of external relations), this case highlights an important feature of the Commission’s work: its reliance upon third-party expertise. The facts of this case are the norm not the exception: many Commission impact assessments and reports rely upon one more reports drawn up by outside consultants. The European Parliament sometimes uses them too.

So anyone seeking to examine the Commission’s decision-making or the development of EU policies more broadly – whether they are journalists, researchers, NGOs or businesses like Mastercard – needs access to the consultant reports which the Commission relies upon to draw up its final proposals, reports and impact assessments. They usually contain very useful information and analysis which plays an important role in the analysis of the Commission’s final official documents which are based upon them.

Usually, the Commission publishes the consultants’ reports which it bases its documents upon. So what impact will today’s judgment have? First of all, it might result in public access to the consultants’ reports at an earlier date. Secondly, and more importantly, it will broaden access to the other background documents drawn up by consultants and made available to the Commission.

In fact, I have been involved in the impact assessment process myself several times, as an adviser to the main consultancy drawing up a report for the Commission.  I can’t discuss any of the details due to a confidentiality agreement, although I should clarify that I had no involvement with the report which was the subject of the Mastercard case.

However, suffice it to say that it is very common for consultancies to draw up interim reports and other background documents which might not be attached to the main impact assessment report. Of course, the consultancy, and advisers such as myself, also draw up drafts and working documents which are not disclosed to the Commission – and this judgment will not liberalise access to those. This is reasonable, for after all the Commission’s decision-making process will not have been influenced by documents which it hasn’t seen.  I’m a long-standing critic of the EU’s access to documents rules, and so I could only imagine the degree of Schadenfreude in the Commission and Council if it turned out that I am directly subject to the EU rules on access to documents. But that’s not going to happen.

What will the impact of this judgment be in practice? In principle, the judgment suggests that all background consultancy reports sent to the Commission ought to be released, unless there’s some other ground for refusal not relevant to the Mastercard case (see the discussion of the external relations exception below). The Court’s finding that the Commission’s decision-making wouldn’t be undermined by release is relevant to all other cases. So is the Court’s ruling that the commercial interest of the consultancy wasn’t damaged. It’s interesting to note that the consultancy didn’t intervene in the proceedings, which it surely would have done if it were worried about being damaged by the release of this document. With great respect to the expertise of EIM and other consultancies, their methodology for impact assessment is hardly the same sort of secret as Colonel Sanders' recipe for Kentucky Fried Chicken. 

The interim reports and other background documents drawn up by consultants may well contain information that could shed further light on the analysis in the final report. If there is a good reason not to rely upon the interim reports or background documents in some or all respect, the Commission and/or the consultant can simply explain this in its final document.

In principle, this judgment is relevant to background consultancy documents in any field of EU law. So businesses, NGOs, journalists and researchers could all rely upon it to gain access to documents which might be useful, whatever their field of interest may be. In particular, it is important that in this case the Court distinguished the line of case law (relevant to competition and state aid, for instance) allowing the Commission to refuse in principle access to all documents relating to individual decisions.

In the field of external relations, the impact of the judgment will be limited somewhat by the possibility to refuse access to any details of the EU’s negotiating mandates for treaties like the TTIP, on the basis of the ‘external relations’ exception in the Regulation. But it should be possible to redact the negotiating mandate from the reports and release the rest of the text (on this point, see further the discussion of another recent transparency judgment here).

This increased access to documents in turn raises two important questions of accessibility and access. First of all, will the Commission make available these background documents, and if so, when?  It’s clear from the facts of this case that the Commission did release some of these documents to ‘stakeholders’, but not to the general public. Surely it’s frequently the case that the Commission doesn’t consult every entity that might want access to the documents in question.

Secondly, how will anyone (besides the Commission, the consultancy, and any special group of consultees) know that these documents exist? Arthur Dent didn’t know about the documents that concerned the destruction of his house; and this was only the precursor to the destruction of the planet Earth without sufficient consultation. There’s an uncomfortable analogy there for climate change activists.

Unfortunately, the Commission seems to have been inspired by this fictional dystopia when designing its access to documents system. When the Eur-lex system of access to EU law was recently redesigned, the Commission removed the direct link to its access to documents register. The Eur-lex staff even denied that they’d done this.

You can still find the register if you Google it – or just click here. But its removal from the Eur-lex page might mean that some people don’t even find it. And if they do find it, they probably won’t find the background documents from consultants listed in it, since the scope of coverage of the register is very narrow. The Commission doesn’t seem to have grasped that Douglas Adams was engaging in humorous mockery – not suggesting a template for the Commission’s regime for access to documents.

Barnard & Peers: chapter 3, chapter 5, chapter 8