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European Union: European Court of Justice Issues Judgment on Journalists’ Access to Documents during Pending Cases

(Oct. 13, 2010) Under European Union legislation, access to documents issued by the EU institutions, the European Commission, the Parliament, and the Council, is a basic right of EU citizens. While the European Parliament has urged that access to documents issued by all bodies of the EU be included in that right, the European Court of Justice (ECJ) recently limited the right to access by journalists and the public at large to documents related to cases pending at the Court. (Court Rejects Journalists' Calls for Full EU Transparency, EurActiv (Sept. 22, 2010),

On September 21, 2010, the ECJ delivered a judgment on an appeal in a case involving the Association de la Presse Internationale (International Press Association) (API), a group representing foreign journalists, against the European Commission for denying access to documents pertaining to sensitive cases, including the EU's “Open Skies” legislative documents. API had instituted legal proceedings in 2003 before the Court of First Instance (CFI) and had argued that the Commission, based on public policy grounds, is obliged to provide access by journalists to documents submitted to court. On the other side, the Commission had claimed that providing access to files may have a negative effect on cases pending before the CFI. The CFI held that such documents were not accessible to the public until the oral hearing. The API appealed the decision to the ECJ. The ECJ upheld the decision of the CFI and agreed with the Commission's argument. It held that the Commission “can refuse an application for access to documents without being under an obligation to undertake a specific examination.” However, the ECJ continued, the Commission has no right to withhold documents after a judgment is issued. (Id.)

The ECJ's judgment was received by the European Commission positively. The API, while regretting the ECJ's decision denying access to court documents prior to a judgment, claimed partial victory from the fact that the decision stated that the Commission cannot deny access to documents after the issuance of a judgment. (Id.)