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14 Article 42 Charter on the Right of Access to Documents: A Strict Scrutiny but Not When Balancing with Privacy and Data Protection

14 Article 42 Charter on the Right of Access to Documents: A Strict Scrutiny but Not When Balancing with Privacy and Data Protection

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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



protection do not contain provisions granting one right primacy over the other. The

full application of both regulations should, in principle, be ensured.311



5.14.1  A

 ccess to Documents as a Promotor of Transparency

and Good Governance

Transparency means openness in the functioning of governments, in order to promote good governance and ensure the participation of civil society.312 Transparency

finds its expression inter alia in the right of access to documents, as laid down in

Article 15(3) TFEU and Article 42 Charter.313 Transparency, or openness, extends –

subject to limitations – to all parts of governments. This includes authorities which

by nature have to respect some degree of confidentiality, in particular services

responsible for national security. Openness of these services is not evident, as the

Snowden revelations demonstrate. This is why, for instance, Reidenberg proposes

that where governments use personal data in the hands of the private sector, this

must be logged and made transparent to citizens.314

Article 42 Charter on the right of access to documents is closely related to the

freedom of expression and information. Both rights and freedoms are essential for a

democratic society; they both concern the right of the general public to be informed

and they give rise to the same issues in relation to the rights to privacy and data

protection. One could interpret access to documents as a species of the right to

receive information, which is an element of Article 11 Charter. This interpretation

finds support in the case law of the European Court of Human Rights, where a right

of access to documents was recognised as part of the right to receive information.315

In Dennekamp II,316 the General Court of the European Union referred to Articles

11 and 42 Charter in one go, in ruling on the application of Article 4(1)(b) of

Regulation 1049/2001.317

311

 Case C-28/08P, Commission v Bavarian Lager, EU:C:2010:378, at 56. See also Herke

Kranenborg on Article 8, The EU Charter of Fundamental Rights, A Commentary, Edited by Steve

Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, 2014, at 234.

312

 Wording of Article 15(1) TFEU.

313

 Further read: Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency?

The Case of the Court of Justice of the European Union’, 31(80) Utrecht Journal of International

and European Law, 5, 2015.

314

 Joel Reidenberg, The Data Surveillance State in the US and Europe, Fordham Law Legal

Studies Research Paper No. 2349269, (Princeton University – Center for Information Technology

Policy/Fordham University School of Law), Wake Forest Law Review, November 2013.

315

 Albeit reluctantly; see: Deirdre Curtin and Joana Mendes on Article 42, The EU Charter of

Fundamental Rights, A Commentary, Edited by Steve Peers, Tamara Hervey, Jeff Kenner and

Angela Ward, Hart Publishing, 2014, at 1102.

316

 Case T-115/13, Dennekamp v Parliament (Dennekamp II), ECLI:EU:T:2015:497.

317

 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001

regarding public access to European Parliament, Council and Commission documents, OJ 2001 L

145/43.



5.14  Article 42 Charter on the Right of Access to Documents: A Strict Scrutiny…



237



However, there are also significant differences between the two fundamental

rights and Dennekamp II does not reflect a more general approach of the Court. To

start with, access to documents is conceptually linked to good governance, included

in Article 41 Charter,318 which also presupposes that a government should actively

give effect to the right. Giving effect to the right of public access to documents

requires a government to act – and not to abstain – by handing over information to

the citizen, be it spontaneously or on request,319 taking into account exceptions and

limitations to the right as laid down by law.

The scope of Article 42 Charter is limited to documents of the European Union.

Article 42 Charter does not extend the scope of Article 15(3) TFEU or Regulation

1049/2001320 and does not interfere with the competence of the Member States to

ensure public access to the documents their administrations hold. Article 42 Charter,

therefore, does not apply to Member States when they act within the scope of EU

law, as an exception to the general rule laid down in Article 51(1) Charter. Only in

specific circumstances – when documents are exchanged between the EU level and

the Member States – are the Member States bound by the obligations of the EU

regime for public access to documents.

Regulation 1049/2001 is the central piece of EU legislation for access to documents. Article 4 of this regulation provides for the exceptions to public access and

has been the object of abundant jurisprudence by the Court of Justice of the European

Union. The Court states that the regulation is based on “the principle of the widest

possible public access to documents” of the institutions, and that exceptions must be

interpreted and applied strictly.321 Where an exception is made, the EU administration must, in principle, explain how disclosure of a document could specifically and

effectively undermine the interest protected by the exception.322 This requires a

case-by-case assessment.323

However, the same strict approach is not followed when a balance must be struck

between access to documents on the one hand, and the rights to privacy and data

protection on the other hand, for instance on the basis of Article 4(1)(b) of Regulation

1049/2001.



318



 Deirdre Curtin and Joana Mendes on Article 42, The EU Charter of Fundamental Rights, A

Commentary, Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart

Publishing, 2014, p 1102.

319

 Article 2(4) of Regulation 1049/2001 provides that documents should be made public following

a written application or “directly in electronic form or directly through a register. In particular,

documents drawn up or received in the course of a legislative procedure shall be made directly

accessible.”

320

 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001

regarding public access to European Parliament, Council and Commission documents, OJ L

145/43.

321

 E.g., Joined cases C-514/07P, C-528/07P and C-532/07P, Sweden v API and Commission (and

connected cases), EU:C:2010:541, at 73.

322

 E.g., Joined cases C-514/07P, C-528/07P and C-532/07P, Sweden v API and Commission (and

connected cases), EU:C:2010:541, at 72.

323

 Joined Cases C-39/05P and C-52/05P, Sweden and Turco v Council, EU:C:2008:374, at 35.



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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



5.14.2  B

 alancing Privacy and Transparency, in the Light

of Bavarian Lager

Commission v Bavarian Lager,324 a case relating to the transparency of documents

with lists of participants to professional meetings, can be seen as the example that

the balancing does not take place on an equal footing. In Commission v. Bavarian

Lager the Court of Justice scrutinised the facts of the cases solely on the basis of

Regulation 45/2001 on data protection, even on an aspect where there seemed to be

a contradiction with Regulation 1049/2001 on public access. Under the latter regulation a right to access can be exercised irrespective of the interest of an applicant in

having the document.325 However, where a document contains personal data, an

applicant must “demonstrate the necessity for those personal data to be transferred”.326

In Dennekamp v European Parliament,327 this requirement prohibited the transfer of

information at the request of a journalist, who did not establish why this information

was necessary to satisfy the public interest the journalist invoked.

Dennekamp v European Parliament sets a high threshold. It is not only necessary

that applicants invoking transparency have a specific interest – which can be parafrased as being the general right of the public to know under transparency rules –, but

they must also demonstrate necessity. Arguably, this goes even beyond the line of

the Court taken in Google Spain and Google Inc.,328 where the interest of the general

public in finding information may outweigh the right of the data subject, particularly if the latter has played a role in public life, without any reference to necessity

in a specific case.

The Court of Justice does not seem to balance privacy and data protection on an

equal footing with public access to documents, or wider: transparency. In Schecke,329

a case outside the scope of Regulation 1049/2001 but dealing with transparency of

the EU institutions, the Court followed a similar approach in balancing between

these rights and seemed to allow wider exceptions to transparency, when privacy

and data protection are affected. The Court ruled that the EU legislator, before

allowing disclosure of information relating to a natural person, is obliged to balance

the Union’s interest in guaranteeing the transparency of its actions with the infringement of the rights recognised by Articles 7 and 8 Charter. Hence, the Court assessed

restrictions to the rights to privacy and data protection in the Charter motivated by

the principle of transparency, as laid down in Articles 1 and 10 TEU and Article 15

 Case C-28/08P, Commission v Bavarian Lager, EU:C:2010:378, appeal against Case T-194/04,

Bavarian Lager v Commission, EU:T:2007:334. This ruling is also discussed in Chap. 2, in relation

to the distinction between privacy and data protection.

325

 Deirdre Curtin and Joana Mendes on Article 42, The EU Charter of Fundamental Rights, A

Commentary, Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart

Publishing, 2014, at 1107.

326

 Case C-28/08P, Commission v Bavarian Lager, EU:C:2010:378, at 78.

327

 Case T-82/09, Dennekamp v European Parliament, EU:T:2011:688, at 34.

328

 Case C-131/12, Google Spain and Google Inc., EU:C:2014:317.

329

 Joined cases C-92/09 and C-93/09, Schecke and Eiffert, EU:C:2009:284.

324



5.15  Article 17 Charter on the Right to Property and Intellectual Property: Do…



239



TFEU, as well as in Article 42 Charter, without balancing the two rights (or principles) on an equal footing.

This conclusion may be an overstatement, because, arguably and apart

from Schecke, the Court’s case law is mainly the result of the ambiguous wording of

Article 4(1)(b) of Regulation 1049/2001.330 With this nuance in mind, this book

takes the view that this case law of the Court confirms that fundamental rights representing human dignity are not balanced on an equal footing with other fundamental rights in the Charter, and that distinctions between fundamental rights can be

made.



5.15  A

 rticle 17 Charter on the Right to Property

and Intellectual Property: Do These Rights Represent

Essential Values in a Democratic Society?

According to the Explanations relating to the Charter of Fundamental Rights,331 the

right to property as protected under Article 17 Charter is a fundamental right common to all the constitutions of the Member States. The Court of Justice of the

European Union has recognised the right to property in numerous cases.332 However,

the nature of the right to property as a fundamental right was never undisputed. One

thing is clear, it is not an absolute right, but it is a right that must be viewed in relation to its social function.333 The right to property is subject to wide limitations,

which follows from Article 17(1) itself. The Union as well as the Member States

have a broad margin of discretion in limiting the right to property.334

Article 17(1) Charter distinguishes between the deprivation of possessions, on

the one hand, and regulations on the use of property, on the other hand.335 Deprivation

of possessions concerns expropriations in the public interest and, at first sight, does

not seem to be relevant for this book. This is different for the regulation of use,

which Article 17(1) Charter allows insofar as this is necessary in the general

interest.



330



 See on Article 4(1)(b): Herke Kranenborg, Access to documents and data protection in the

European Union: On the public nature of personal data’, CMLR, 45: pp. 1079–1114, 2008.

331

 OJ (2007) 303/17.

332

 Explanations to the Charter of Fundamental Rights, explanation on Article 17, also mentioning

the first case, C-44/79, Hauer, EU:C:1979:290.

333

 This is a constant in the CJEU’s case law, before and after the entry into force of the Lisbon

Treaty. E.g., Case C-416/10, Križan and Others, EU:C:2013:8.

334

 Ferdinand Wollenschläger on Article 17, The EU Charter of Fundamental Rights, A Commentary,

Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing, pp. 483–

484, 2014 and the case law mentioned there.

335

 Further read: Ferdinand Wollenschläger on Article 17, The EU Charter of Fundamental Rights,

A Commentary, Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart

Publishing, pp. 477–485, 2014.



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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



The Court of Justice leaves the Member States a wide margin of appreciation in

regulating the use of property, but limitations of use have to meet the test of proportionality. This margin of appreciation is important in the context of this book,

because it may mean that the standard of review the Court applies to the right to

property is less strict than the standard it applies to privacy and data protection. In

relation to intellectual property, the Court seems to confirm a difference with privacy and data protection. The Court ruled in Scarlet Extended336 that there is nothing “to suggest that that right [to intellectual property] is inviolable and must for that

reason be absolutely protected”.

This leads to a few remarks on the right to property itself. It is beyond doubt that

the right to property has a fundamental nature and relevance in society. The right has

a longstanding history. Locke, for instance, emphasised in Two Treatises of

Government, the essence of property.337 In his view, every individual has a property

in his own person; this is something that nobody else has any right to. This property

is linked to his labour. The right to property was also recognised in the American

and French revolutions,338 and in those days even linked to civil and political rights.

Only – male – citizens having property were considered to be stakeholders in society and were supposed to have a right to vote.339 The limitations on the right to

property in parts of Europe before the fall of communism are a further illustration

that the enjoyment of the right to property should not be taken for granted.340

The inclusion of the right to property in the main twentieth century international

fundamental rights instruments however was less obvious. The right to property is

included in Article 17 of the Universal Declaration of Human Rights, but not in the

International Covenant on Civil and Political Rights. The right to property is not

embodied in the European Convention on Human Rights itself, but was only added

in the First Protocol to the Convention after much debate. In literature, the right to

property is not systematically qualified as a civil or political fundamental right or as

a fundamental element of a democracy.341 Gerards calls the right to property a

­“borderline right”.342 Nevertheless, it is one of the most violated rights of the



 Case C-70/10, Scarlet Extended v Sabam, EU:C:2011:771, at 43.

 John Locke, Second Treatise of Government, point 27, available on: http://www.earlymoderntexts.com/pdfs/locke1689a.pdf.

338

 Article 2 of the Déclaration des Droits de l’Homme et du Citoyen du 26 août 1789: “Le but de

toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme.

Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.”

339

 See on this: Micheline R. Ishay, The history of human rights: from ancient times to the globalization era, University of California Press, pp. 91–99, 2008.

340

 See: https://en.wikipedia.org/wiki/Human_rights_in_the_Soviet_Union#Economic_rights.

341

 See on this: C. Fabre, Constitutionalising Social Rights, The Journal of Political Philosophy,

Volume 6, Number 3, pp. 263–284, 1998.

342

 J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’, in:

E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, footnote 15 of

Chap. 1.

336

337



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