In its judgment of 7 September 2023, the EU Court of Justice ruled on an appeal on questions of access to documents and the existence of an overriding public interest (Case C-135/22 P).
Facts of the case
The Breyer case concerns a request for access to documents pursuant to Regulation n°1049/2001 submitted to the European Research Executive Agency (“REA”) by Patrick Breyer, a German digital rights activist and MEP. By this request, Patrick Breyer sought access to documents concerning the "iBorderCtrl" project, aiming at testing new technologies in controlled border management scenarios. More specifically, the project concerned new technologies such as technology supposed to allow the automated detection of lies by analysing the micro-expressions of travellers’ face in response to the questions asked to them before they enter the European Union.
By a decision of 17 January 2019, the REA granted partial access to some documents and rejected the application for access as to the remainder. Consequently, Patrick Breyer brought an action for annulment against this decision.
In a judgment handed down on 15 December 2021 (T-158/19), the General Court partially annulled the decision, considering that REA had failed to carry out a full examination of the request for access to documents relating to the authorisation of the project and had not granted sufficient access to information relating to the implementation of the project.
Arguments of the appellant before the Court
Patrick Breyer lodged an appeal before the EU Court of justice (“the Court”) against the judgment of the General Court. In this appeal, he did not contest the fact that certain documents were covered by the exception relating to the protection of the commercial interests of the participants in the iBorderCtrl project, as stated by the General Court. However, he alleged that the General Court wrongly held that an overriding public interest justifying disclosure had not been established. According to him, there is an overriding public interest justifying access given that :
- The access concerned documents related to the implementation of a project entirely financed by public funds ;
- There was a scientific, media, political and democratic interest in the disclosure of the concerned documents ;
- There was a public interest in examining the scientific basis and reliability of the technology used in the context of the iBorderCtrl project ;
- The technologies used in the iBorderCtrl project were likely to have an impact on fundamental rights.
Furthermore, the appellant claimed that the General Court erred in law in ruling that the provisions of Regulation 1290/2013 and Regulation 1291/2013 relating to Horizon 2020 and of the agreements applicable to the iBorderCtrl project were sufficient to satisfy the above-mentioned interests in so that they provide for a system of dissemination of results of the project and for the possibility for the institutions, bodies, offices and agencies of the European Union and the Member States to request access to certain information.
Findings of the Court
In this context, the Court had to ascertain whether the General Court erred in law in carrying out that balancing exercise and in refusing to qualify the interests relied on by Patrick Breyer as overriding public interests justifying disclosure of the documents at issue.
• On the information relating to publicly funded projects
The Court admits that a research project financed by EU funds intended to develop a new technology can reveal the existence of a genuine public interest in access to documents, but considers that such a general ground is not sufficient in order to establish that that interest must prevail over the reasons justifying the refusal to disclose those documents.
• On the existence of a scientific, media and general public interest
The Court starts by underlying that a scientific, media and general public interest in the dissemination of information relating to the iBorderCtrl project was not denied by the General Court. The latter however asserted that that interest was satisfied by the system of dissemination of results of the iBorderCtrl project, as described above.
Nevertheless, the Court stated that the General Court erred in finding that this interest was safeguarded by the possibility for the EU Institutions and Member States to request access to certain information. The Court recalls that the institutions, bodies, offices and agencies of the European Union and the Member States have indeed the right to ask access to available information concerning the results generated by a participant in an action that has received EU funding, but this access is given to information that is relevant for public policy purposes, which, once disclosed, is to remain confidential. The access provided under Regulation 1049/2001 concerns public access, i.e. access open to all EU citizens. These access rights therefore have neither the same beneficiaries, nor the same purposes. The Court however noted that this argument set out by the General Court was included purely for the sake of completeness and that the argument put forward by Patrick Breyer must be rejected.
• On the potential adverse effects of the iBorderCtrl project to fundamental rights
According to the Court, the General Court erred in law by rejecting Patrick Breyer’s argument based on the existence of an overriding public interest resulting from the adverse effects that the iBorderCtrl project is likely to cause to fundamental rights. Indeed, the Court claimed that the relevant provisions applicable to this project imposed on participants the obligation to respect these fundamental rights and principles. The Court however states that this reminder to respect fundamental rights is not such as to give rise to a presumption that there is no infringement of those rights or to deny the existence of an overriding public interest. Consequently, it cannot justify the refusal of access to documents in order to verify that the obligations incumbent on the participants in the project and on the EU institutions have been respected.
Here again, however, the Court considers that this argument put forward by the General Court is included for the sake of completeness and rejects therefore the ground of appeal.
In view of the above, the appeal is dismissed.
In its previous case law, the EU Courts have repeatedly shown reluctance to recognise an overriding public interest that may justify access to documents covered by an exception to the right of access. With the present judgment, the Court has however taken a first step towards such recognition.
For further information about this case and/or for general legal advice relating to access to documents, please contact Raluca Gherghinaru and Janek Nowak.