4.

GENERAL PRINCIPLES OF EU LAW

THE GENERAL PRINCIPLES OF EU LAW

The unwritten sources of EU law are the second principle source and are derived from the case
law of the Court of Justice and are known as the General Principles of EU Law. The General
Principles of EU Law are divided into 2 categories:

(i) The fundamental rights of EU law

(ii) The rules governing the administration of EU law

For the exam, the more important is the fundamental rights of EU law. A Q here is sometimes
in conjunction with the doctrine of Supremacy. The principle of proportionality often appears in
problem questions on fundamental freedoms.

FUNDAMENTAL RIGHTS

The original EEC Treaty did not contain any reference to fundamental rights, which at the time,
were protected by the European Convention on Human Rights.

The ECHR was drafted in 1950 by then then newly formed Council of Europe. The Convention
established the European Court of Human Rights. Applicants who believe that their rights under
the Convention have been violated may take a case to the Court.

There are a number of protocols to the Convention. The acceptance of these protocols varies
from State to State, though it is understood that State parties should be party to as many
protocols as possible.

Some examples of the Articles under the Treaty include Article 2, the right to life, Article 3,
prohibition against torture, Article 6, right to fair trial and Article 8, right to private life, family life,
home and correspondance.

History of the Development of Fundamental Rights Protection Within the EU

The road to fundamental rights protection in the EU began when the ECJ established the
doctrine of supremacy. Following the recognition of the doctrine it became apparent that unless
fundamental rights were also recognised by the ECJ, EU, which could not be challenged under
national law would be immune from challenge on the grounds of fundamental rights.

The ECJ developed the General Principle of protection for fundamental rights to ensure that
individuals could challenge that validity of EU acts whenever they interfered unlawfully with the
personal rights of individuals. The ECJ implicitly recognised that fundamental rights formed part
of the EU legal order in the case below.

Stauder (1969) – The Commission had adopted a decision to reduce EU butter stocks by
allowing butter to be sold at a lower price to persons on certain social welfare scheme. In order
to avail, the beneficiaries had to produce a coupon which, in Germany had to indicate their
name, whereas in the French and Italian versions, the name did not need to be indicated. The
Court held that the more liberal French and Italian version should be adopted as this would not
prejudice “the fundamental human rights enshrined in the general principles of EU law and
protected by the Court.” In effect, if there were 2 interpretations of EU law, the ECJ would adopt
the one that did not violate fundamental rights.
The Court of Justice went on to formally recognise that fundamental rights formed past of the
EU legal order in 1970 in the case below, which will also be looked at under the Doctrine of
Supremacy.

Internationale Handelsgesellschaft (1970) – a German company has been granted a licence

to import maize on the condition that it pay a deposit which would be forfeited if it failed to
export the maize within a certain timeframe. The company failed and the deposit was forfeited.
It then challenged the Regulation pursuant to which the licence was granted. The German
Court considered that the Regulation violated provisions of the German Constitution on the
freedom of Trade. HELD: “…respect for fundamental rights forms an integral part of the
general principles of law protected by the Court of Justice.” The ECJ went on to find that there
had been no violation of the fundamental right to trade, but the decision established that
fundamental rights form an integral part of EC law.

In Nold v Commission (1974) – the ECJ held that fundamental rights enshrined in
international treaties to which the MS were signatories such as the European Convention on
Human Rights were protected by the EU.

In Rutili v Minister for the Interior (1987) – the ECJ relied on the ECHR for the first time.

The German Constitutional Court had major difficulties with the fact that the EC did not contain
a catalogue of fundamental rights similar to that of the German Constitution.

Solange II (1987) – The German Constitutional Court reversed its approach to the review of EU
acts in light of fundamental rights. Though at this stage no catalogue of fundamental rights had
been established, the German CC considered that the protection of fundamental rights had
reached an acceptable level, and stated that “so long as” the level of fundamental rights
protection in the EU did not fall below that of the German Constitution, Germany would
recognise the Doctrine of Supremacy.

The first explicit incorporation of fundamental rights into substantive provisions of the Treaty
came with Article 6 of the Maastricht Treaty (TEU) which came into force in 1993. Article 6 TUE
– “The Union ahsall respect fundamental rights, as guaranteed by the ECHR…as general
principles of law”. Art 6 did not more than confirm fundamental rights as a constraint on EU
action and therefore could not be relied upon before national or EU courts. This represented a
weak form of recognition of fundamental rights.

In light of this, MS understood that some form of positive protection of fundamental rights in the
EU was necessary and sought the opinion of the ECJ as to whether the accession of the ECHR
would be legally permissible. The Court of Justice ruled that the EC had not competence to
accede to the ECHR as it did not have any general human right competence. According to
Chalmers, the logic behind this decision was that fundamental rights only existed in EC law as
a constraint on other substantive policies and not as a positive agenda in its own right.”.

The next development in fundamental rights protection came with the Treaty of Amsterdam
which entered into force in 1999. The Treaty provided that pursuant to Articles 6(1) and 7 TEU,
the EU is founded on the protection of fundamental rights and freedoms. Art 49 of the Treaty
states that candidate countries must respect fundamental rights to gain full membership of the
EU. Although, there was no catalogue of fundamental rights contained in the Treaty.
Therefore, the recognition of individual fundamental rights remained the task of the Court of
Justice. This was criticised on a no of grounds. The German courts had pointed out that there
was no catalogue of rights under the Treaty.

In addition, fundamental rights are intended to protect individuals from unlawful interference
with personal rights by EU institutions and the MS. However, no positive list exists that they can
consult. This lack of transparency arguably undermines the effectiveness of fundamental rights
protection under EU law.

The Charter of Fundamental Rights

In 1998, the Directorate General for Employment and the Commission expressed a desire to
incorporate social rights most strongly within the fundamental rights debate. A committee was
set up which investigated the status of fundamental rights in general.

In its report, it proposed a European Bill of Rights. The report was published in 1999, which
coincided with the German presidency of Council. The Germans were attracted by the idea of
developing a Charter of Fundamental Rights, which would make EU fundamental rights more
visible. It was envisaged that the Charter should include the rights contained in the ECHR and
those present in the constitutional traditions common to the MS.

The Charter formulated through a convention which comprised of representatives from the
governments of the MS, a representative from the Commission, MEPs and representatives
from national parliaments. Furthermore, submissions were invited from Human Rights groups,
regional bodies and trade unions.

The Charter was drafted and officially “proclaimed” in 2000. The Charter is composed of the 7
chapters of human dignity, freedoms, equality, solidarity, citizen’s rights, justice and general
provisions.

Few of these rights are absolute and many are conditioned by exceptions. Art 52(1) sets out
how such exceptions may be invoked: “Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet objectives of general interest
recognised by the Union or the need to protect the rights and freedoms of others.”

The Charter closely follows the lead of the ECHR, for example, the right to property under Art 1
Protocol 1 of the Convention is protected under Art 17 of the Charter.

THE EUROPEAN CONSTITUTION

The MS chose to introduce the Charter to the Treaties by including the text of the Charter in Pt
2 of the Constitution. It was intended to enhance the transparency and legal certainty of
fundamental rights within the European Union. The incorporation of a bill of rights into the
Treaties woud also have provided a full and complete legitimate basis for the protection of
fundamental rights by the Court of Justice.

Externally, the Charter would also provide a road-map for the accession of new MS by
providing non-European states with an example for the protection of fundamental rights in their
own countries.
However, the incorporation of an EU Bill of Rights is controversial and many commentators
argue that fundamental rights are protected adequately within the domestic legal order of the
MS and it is unnecessary to protect fundamental rights uniformly throughout the EU. Moreover,
many feel that MS should be entitled to protect certain right within their borders that are more
important to their citizens.

Following the rejection of the Constitution, the International Governmental Council concluded
that the incorporation of the Charter directly into the Treaties might risk a rejection of the future
reform Treaty by the Euro-sceptic MS. As a result, the Lisbon Treaty therefore makes a
reference to the Charter, whereby the Charter gains legally binding force, but does not contain
the actual Charter.

Art 6(1) TEU states: “The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.” It is not at all clear what this point means.
There will need to be clear guidance from the ECJ as to what exactly is meant by this phrase.

The Charter applies only in relation to acts of the Institutions and where MS are implementing
EU law. There will need to be clear guidance from the ECJ as to what exactly is meant by this
phrase. Lisbon also requires the EU to become a signatory of the ECHR. Art 6(2) states – “The
Union shal accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms”.

One question answered by Art 6(2) TEU is the relationship between the Charter and the ECHR.
At present the 2 courts are effectively equal and are careful not to develop an overlapping and
contradictory jurisdiction. If the EU accedes to the ECHR, then this relationship may well
change. Again, developments in this area will take time.

Finally, it is not clear what status the Charter will have. Is it likely that a more minimalist
approach will be adopted by the ECJ. The Charter is likely to have an impact of rights in the
Union, but will be interpreted very much with the Convention.

The Court of Justice and Fundamental Rights

The Charter of Fundamental Rights has now been given legally binding force by the Lisbon
Treaty. Although to date, the Charter has not formed part of the Treaties, the Court of Justice
has relied upon the Charter in its fundamental rights case law. For example, the Court of
Justice relied on the right to property under Article 17 of the charter in Fratelli Martini and
Cargill and the freedom of expression as protected by Article 11 of the Charter in the case of
RTL Television GmbH (2001).

The Court has repeatedly stated that, aside from the Charter, the 2 main sources of
fundamental rights within the EU are those rights in the Constitutional traditions common to all
the MS, as well as those International Human Rights Treaties to which MS are parties. The
most important Human Rights Treaty that has been extensively relied upon by the Court is the
European Convention on Human Rights. Craig and deBurca suggest that the Court of Justice
has relied upon the Convention as a means of validating its development of unwritten general
principles such as fundamental rights by grounding them in positive legal sources.

The Court of Justice has tended to adopt a minimalist approach to the recognition of
fundamental rights within the EU; it is only where the rights are protected in numerous MS that
the EU courts have recognised them, and rights that form part of very few MS’ Constitutions
have not formed part of the fundamental rights of EU law. However the Court of Justice did find
that the right of privacy included the right to lawyer-client confidentiality in the case of AM & S
(1982) notwithstanding the fact that the right was one derived largely from the common law
legal traditions.

Method of Interpretation: The Court of Justice has also been slow to embrace the method of
interpretation of the ECHR, which believes the rights evolve over time. By contrast, the Court
of Justice tends to be positivistic, content to apply the case law of the ECHR as it then stands.
In the Grant case (1998), the ECJ refused to hold that same-sex marriages fell within the right
to protection for family and private lift under Art 8, whereas in Smith & Grady (1996), the
ECHR concluded that the right to private life included protection for sexual orientation.

Case Law of the ECJ RE: Fundamental Rights Protection

The cases below illustrate the approach of the ECJ to fundamental rights protection, more
particularly in relying on the European Convention on Human Rights. In the following 2 cases,
the ECJ relied upon Art 8 of the ECHR (right to private life, family life, home & correspondence)

X v Commission (1994) – the applicant challenged a Commission decision refusing to recruit

him as a temporary staff member on the basis that he was medically unfit, and he also sought
compensatory damages. The basis for refusal was the applicant’s refusal to undergo a
compulsory HIV test as part of a medical. The staff carried out the test w/o consent and the
results led them to believe that the applicant may by HIV positive. The Commission’s actions
were challenged unsuccessfully before the Court of First Instance and the applicant appealed
to the Court of Justice. HELD: the right to respect for private life under Art 8 of the Convention
and derived from the common constitutional traditions of the MS, is a fundamental right
protected by the EU and includes a person’s right to keep his state of health private. The right
to private life is not absolute and restrictions may apply provided they are in the interests of the
general public and do not constitute a disproportionate and intolerable interference of the right
protected. Although the test served the legitimate interest of ensuring that staff were medically
capable of fulfilling their posts, this did not justify the carrying out of a test against the will of the
person. The ECJ held that there had been a breach of the applicant’s right to respect for family
life in Art 8 of the Convention.

Carpenter (2002) – Mrs Carpenter arrived in the UK under a 6 month visitor’s visa in Sept 1994
and overstayed her visa. She had been in the State unlawfully for 14 months when she married
Mr Carpenter, a British national. She applied for leave to remain based on EU law in July 1996
and was refused in July 1997. She challenged this refusal before the UK courts who referred
the matter to the Court of Justice. HELD: the Carpenters had a family life in the UK and that
was protected by the fundamental right to family life. The deportation of Mrs Carpenter would
be detrimental to the exercise of the fundamental freedoms and the right to family life.
Therefore, the MS would have to justify that on the basis of public order or public security. In
the circumstances, the deportation did not strike a balance between the 2 rights. Although Mrs
Carpenter had infringed national immigration rules, her conduct did not give rise to a fear that
she might in future constitute a danger to public order or public safety. Mr and Mrs Carpenter’s
marriage was genuine and the Carpenters continued to lead a true family life, in particular when
Mrs Carpenter looked after Mr Carpenter’s children.

In the following case, the Court relied upon Art 10 ECHR (freedom of expression).
Connolly v Commission (2001) – Mr Connolly a senior official working in the Commission
published a book entitled ‘The Rotten Heart of Europe – the Dirty War for Europe’s Money’
without the consent of the Commission as was required in the staff regulations. Held According
to the ECHR, freedom of expression constitutes one of the essential foundations of a
democratic society. However freedom of expression is not absolute and can be limited in
accordance with Artile 10(2) of the Convention where those limitations are in accordance with
law and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety. MS have a margin of discretion to assess what is necessary in a
democratic society but those limitations must be interpreted strictly and require a pressing
social need and the interference must be proportionate to the legitimate aim. In the
circumstances, the allegation of a breach of the right to FOE resulting from the application
thereto of the Staff Regulations, was unfounded since their employer and the system was
established in such a way that it was proportionate to that objective.

SPUC v Grogan (1991) – in 1986 the Irish Supreme Court ruled that it was against the Irish
Constitution for Irish student unions to assist women to have abortions by providing them with
information about abortion clinics in the UK. After the ruling, SPUC sought an undertaking from
the student unions that they would cease publishing the information. The unions did not reply
that SPUC sought an injunction in the High Court to prevent publication of the info. An officer of
one of the student unions argued that the student’s right to freedom of expression had been
violated. The High Court referred a number of questions to the ECJ. HELD: medical termination
of pregnancy constitutes a service within the meaning of the Treaty. The provision of info in this
case is not to be regarded as a provision of services as the info is not distributed on behalf of
an economic operator, but is merely a freedom of expression. The matter therefore, falls
outside the scope of EC law. Only when national legislation falls within the scope of EC law, the
ECJ will assess the compatibility of the legislation with fundamental rights.

EQUALITY AND NON-DISCRIMINATION

The general principle of non-discrimination is contained in Art 21 of the Charter of Fundamental

Rights and Freedoms.

Apart from the Charter, the major development in the area of non-discrimination was the
addition of Art 13EC by the Amsterdam Treaty, which has been replaced by Art 19 TFEU which
proves that the Council, acting unanimously in accordance with a special legislative procedure
and after obtaining the consent of the Parliament, may take appropriate action to combat
discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual
orientation. Unlike Article 21 of the Charter or Article 18 TFEU, this article is not a direct
prohibition against discrimination, but an empower provision enabling the EU to take action
against discrimination.

The institutions have adopted two Directives pursuant to Article 19 TFEU, the Race Directive
and the Framework Directive.

Equality is discussed further in chapter 13.

LEGAL CERTAINTY

Pursuant to the principle of legal certainty, EU law must be clear and precise and its
consequences foreseeable. His enable citizens to be fully aware of the demands particular
pieces of EU legislation place on them. It also requires hat sufficient information is provided to
the public so that they ma comply with legislation fully. The principle means that measures
cannot take effect before they are published.

Opel Austria (1997) – The European Economic Area came into force on the 1 January 1994.
Art 10 prohibited customs duties on imports and charges. On 20 December 1993, the Council
adopted a regulation which imposed a 4.9% tariff on gearboxes produced by Opel Astra. The
Regulation was published in the OJ on the 31 December 1993. Opel was notified of the
Regulation on the 6 January 1994 and Opel maintained that the Regulation violated the
principle of legal certainty. HELD: the ECJ held that EU legislation must be certain and its
application foreseeable. The requirement of legal certainty must be observed all the more
strictly where a measure is likely to have financial consequences. By adopting the contested
Regulation on the 30 December 1993, 2 contradictory rules of law would co-exist. The
Regulation therefore infringed the principle of legal certainty as its application could not be
regarded as foreseeable by those subject to it. The contested Regulation was therefore
annulled.

SUBSIDIARITY

The central elements of the principles and subsidiarity and proportionality are set out in Article 5
TEU.

The principle of subsidiarity relates to the exercise of powers in the EU. It is intended to
determine whether, in an area where there is joint competence between the EU and the MS,
the Union should act or the matter should be left to the MC.

According to Craig & De Burca, subsidiarity embraces 3 separate, yet related ideas:

(i) The EU is to take action only if the objectives cannot be sufficiently achieved by the
MS
(ii) The EU can better achieve the action because of its scale of effects
(iii) If the EU does take action, then this should not go beyond what is necessary to
achieve Treaty objectives i.e. must be proportionate.

Subsidiarity was introduced by the Maastricht Treaty and was defined in Art 5EC and provides
that - In areas which do not fall within its exclusive competence, the EU shall take action, in
accordance with the principle of subsidiarity, only if the action cannot be sufficiently achieved
by the MS and can therefore be better achieved by the EU.

In 1993 the Inter-institutional Agreement on Procedures for Implementing the Principle of

Subsidiarity requires the institutions to have regard to the principle when legislation. The Treaty
of Amsterdam annexed the ‘Protocol on the Application of the Principles of Subsidiarity and
Proportionality’ to the EC Treaty, which provided guidelines to ensure EU action complied with
the principles. Art 5 of the Protocol provides that draft legislation acts shall be justified with
regard to the principles of subsidiarity and proportionality.
The Lisbon Treaty repealed Art 5 of the EC Treaty and incorporated the principle of subsidiarity
into Art 5(3) TEU, which adds an explicit reference to the regional and local dimension of the
principle of subsidiarity.

Furthermore, the Lisbon Treaty replaced the 1997 Protocol on the Application of the Principles
of Subsidiarity and Proportionality with a new Protocol of the same name; the main difference is
the new role of the national parliaments in ensuring respect of for the principle of subsidiarity.

According to this procedure, Parliament have 6 weeks from the date of transmission of a draft
legislative act to send a reasoned opinion stating why it considers that the draft does not
comply with the principles of subsidiarity. If there are a sufficient number of reasoned opinions,
the proposed legislation must be reviewed.

It is clear from case law that although the principle of subsidiarity can be invoked before the
Court of Justice, the Court has been reluctant to annul measures on the basis of such a breach.

Netherlands v European Parliament and Council (2001) – The Netherlands brought an

action for annulment of the Directive on the legal protection of biotechnological inventions. The
objective of the Directive was to require MS to protect biotechnological inventions through their
national patent laws. The Netherlands argued that the Directive breached the principle of
subsidiarity as it had not been shown that the objective of the Directive could not be achieved
by the MS. HELD: the objective of the directive could not be achieved by action taken by the
MS alone. The scope of that protection had immediate effects on intra-EU trade and, given the
scale and effects of the proposed action, the objective in question was better achieved by the
EU.

PROPORTIONALITY

The principle of proportionality is one of the most long-standing and important General
Principles of EU law. The principle is defined in Art 5EC as follows: “The EU shall not go
beyond what is necessary to achieve the objectives of the Treaty.” The operation of the
principle is illustrated in the case below.

Fedesa (R v Minister of Agriculture, Fisheries and Food ex parte Fedesa) – proceedings

were brought in England by Fedesa and others against the Minister for Agriculture, Fisheries
and Food and the Secretary of State for Health, challenging the validity of the Council directive
which prohibited the use of certain substances having a hormonal action in livestock farming. It
was argued that the Directive infringed the principle of proportionality in 3 respects:

- The outright prohibition was inappropriate since it was impossible to apply in practice
and would lead to the creation of a black market.
- Outright prohibition is not necessary as consumer anxieties can be allayed through the
dissemination of information and advice.
- The prohibition contained excessive disadvantages, in particular, financial loss in
comparison with the alleged benefits accruing to the general interest.

The High Court of Justice in England referred to the ECJ for a preliminary ruling on certain
questions, including whether the Directive infringed the principle of proportionality. HELD: in
accordance with the principle of proportionality, the lawfulness of the prohibition of an economic
activity is subject to the condition that the measures are appropriate and necessary in order to
attain the objectives. If there is a choice between several measures, recourse must be had to
the least onerous one. However, in matter relating to the Common Agricultural Policy, the EU
legislature has a discretionary power and therefore the legality of a measure adopted can only
be affected if the measure is manifestly inappropriate having regard to the objective. The
Council was entitled to take the view that the removal of the barriers to trade could not be
achieved by any less onerous measures such as providing information to consumers. The
principle of proportionality was therefore not infringed.

It is therefore clear that the general test of proportionality consists of numerous related
principles, from which we can formulate the following 4 part test:

(i) Does the EU act pursue a legitimate objective under EU law?

(ii) Is that EU act suitable to meet the objective?
(iii) Is that EU act necessary to meet that objective?
(iv) Does that EU act impose an excessive burden on individuals having regard to the
objective pursued?

Chalmers argues that when applying the principle of proportionality, the Court of Justice uses
differing degrees of review for the acts of the EU institutions to the acts of the MS. When it
comes to EU policy, the ECJ will intervene only where the EU institution has acted in a way
which is “manifestly improvident”. For MS, the ECJ will apply the principle of proportionality in a
more rigorous manner and will intervene where the measure is not necessary to achieve a
legitimate aim and that a less restrictive alternative exists.

LEGITIMATE EXPECTATION

The principle of legitimate expectation permits individuals to challenge EU acts on the basis
that the act unlawful interferes with an expectation held by that individual as a result of the
action of an EU institution. It requires that if an EU institution induces a party to take a particular
course of action, the institution may not go back on its earlier position where this would cause a
party to suffer. An individual must satisfy the following test:

1. The EU institution must have made a representation

2. The representation can be expressed or implied or can result from a course of conduct.
The individual must have relied upon the representation and adapted their behaviour in
reliance.
3. Permitting the institution to resile from its position would result in detriment to the
individual.

The case below is the leading case in this area and concerns milk quotas.

Mulder (1988) - the PL instituted proceedings against the Dutch Minister for Agriculture and
Fisheries challenging the refusal to grant a licence to the PL permitting him to restart milk
production. The PL had ceased production as part of an EU scheme whereby farmers were
given a payment to cease production for 5 years in order to reduce the excess milk being
produced in the EU. Following the 5 years, Mulder applied for a licence to restart milk
production. His application was refused as the reference period for the allocation of milk quotas
was based upon the applicant’s previous year’s milk production, which in the case of Mulder
was zero. The PL challenge the system as it infringed his legitimate expectation that he would
be entitled to restart milk production following the 5 year period. HELD: a producer who
voluntarily ceased production for a certain period cannot legitimately expect to be able to
resume production under the same conditions and not be subject to any rules of market or
structural policy adopted in the meantime. However, where a producer was encouraged by an
EU act to suspend production he can legitimately expect not to be subject to EU rules that
affect him because he had participated in the EU scheme. Moreover, there is nothing in the
scheme to suggest that a producer would not be entitled to restart production after the
suspension period. Consequently, Regulation 857/84 was unlawful for infringing Mulder’s
legitimate expectation that he would be entitled to resume milk production in some form after
the suspension period.

TRANSPARENCY

This principle is intended to ensure greater transparency regarding the manner in which EU
institutions exercise their powers under EU law. According to Chalmers, transparency is an
umbrella terms that covers a variety of values, of which he identifies 5:

(i) Access to documents and information

(ii) Knowledge about who makes decisions and about how they were made
(iii) Comprehensibility and accessibility to the framework, structure and procedures of
decision making
(iv) Consultation by the institutions
(v) The duty to give reasons

The recent focus in the EU has been on the access to documents. The starting point here is
Declaration 17 which was attached to the Maastricht Treaty which provides that “transparency
of the decision-making process strengthens the democratic nature of the institution and the
public’s confidence in the administration…”

This Declaration led to a code of conduct on access to documents coming into force in 1994.
The Code provided that the public “will have the widest possible access to documents held by
the Commission and the Council”. Under the code, anyone could apply for access. Decisions
not to allow access were judicially reviewable.

The right to access to documents was enshrined in the EC Treaty under Art 255EC and this
Article is not contained in the new Article 15 TFEU. Art 15(1) requires all of the institutions,
bodies, offices and agencies of the EU to ‘conduct their work as openly as possible.’ Art 15(2)
requires the European Parliament to meet in public as well as the Council when considering
and voting on legislation.

Article 255EC is now contained within the new Article 15 TFEU. Art 15(3) sets out the principle
of a right of access to documents and transparency of procedures. Article 15(3) TFEU – “Any
citizen of the Union and any natural or legal person residing or having its registered office in a
MS shall have the right to access of docs of the Union institutions, bodies, offices and
agencies, whatever their medium, subject to the principles and conditions to be defined in
accordance with this paragraph…Each institution, body, office or agency shall ensure that its
proceedings are transparent and shall elaborate in its own Rules of Procedure specific
provisions”.
The central piece of secondary legislation enacted pursuant to Art 15(3) is Regulation 1049-
2001 which established a general system for permitting access to EU documents by members
of the public.

Chalmers states that this access is provided in 2 ways:

First, all EU institution are required to keep up-to-date electronic registers of documents to
which the public can have access. There had been criticism of this electronic register in that it is
not user-friendly and many documents are not included.

Secondly, parties can request access to particular information. Any request must be made in
writing and must be sufficiently precise to allow the institution to identify the document.
Institutions must acknowledge receipt of any applicant and must provide either access to the
documents requested, or the reasons for refusing access within 15 days.

Williams v Commission (2008) - this case deals with what happens when the institution feels
it is unable to supply the documents. It is clear that they can only refuse based on the amount
of work involved for the institution in exceptional circumstances. The applicant was writing a
doctorate and requested internal documents from the Commission in relation to 6 pieces of
legislation on the Union’s regime on genetically modified organs. The Commission stated that
the request was too broad and imprecise. The case went before the General Court. HELD: the
General Court stated that in certain circumstances an applicant might make a request for a
manifestly unreasonable no of documents which could paralyse the proper working of that
institution. The institution therefore had the right, where it would entail an unreasonable amount
of administrative work, to balance the interest in public documents against the burden of work in
order to safeguard the interests of good administration. This however, would only occur in
exceptional circumstances. The burden of proof of the scale of the task would rely on the
institutions. In this case, there was nothing to suggest that the applicant’s request would entail
an unreasonable amount of work. The applicant’s request was clear and the Commission had
the opportunity to divide her request into 6. The Court rejected the Commission’s argument.

Exceptions to the Right of Access to Information

Article 4 sets out the exceptions to the right of access to documents. Art 4(1)(a) provides for
refusal based on public interest. Art 4(1)(b) provides for refusal based on privacy and integrity
of the individual.

Art 4(2) provides for refusal based on protection of commercial interests, including IP rights,
court proceedings and legal advice.

The institutions have discretion under Art 4(2) to refuse access if there is an overriding public
interest.

Finally, art 4(3) sets out what must happen when the Institutions have documents which
originated in MS.

Public right of access to documents is linked to the democratic legitimacy of the Union.
Therefore in Sison v Council the court indicated that the above exceptions must be interpreted
strictly but as shown in the WWF case below, the CJEU has taken a very hands off approach to
dealing with documents falling under Article 4(1).
Council v Hautala (2001) – Mr Hautala sought access to the Report of the Working Group on
Conventional Arms Exports from the Council. The Council refused on the basis that it contained
highly sensitive info, disclosure of which would undermines the public interest as regards public
security. The PL challenged this decision. The GC annulled the decision at first instance and
the matter was appealed to the Court of Justice. HELD: The CJEU upheld the decision of the
GC. The refusal was based on an exception to the principle of open access and exceptions
should be construed and applied strictly. However, such exceptions must apply with the
principle of proportionality i.e. the Council was obliged to examine whether partial access
should be granted to the info not covered by the exceptions. Since the Council had failed to
carry out such an examination, the contested decision is vitiated by an error of law and must
therefore be annulled.

This case is interesting as the Court was imposing a duty on the institutions that they must first
examine whether any part of a document could be safely enclosed, before reaching a decision
to withhold access.

WWF European Policy Programme v Council (2004) – the WWF requested documents on
international trade negotiations. The Council refused under Art 4(1)(a) as disclosure would
undermine the Union’s commercial interests and would be prejudicial to its relations with other
states. HELD: the Court noted that the institution have a wide discretion when considering
whether access to documents may undermines the public interest, and the court would only
intervene if there had been a manifest error of assessment or misuse of powers. The Court
accepted that disclosure could have affected the negotiations taking place at the time, and
would have entailed the risk of undermining the public interest.

Thus in relation to Art 4(1), the CJEU had limited its role to the following:

(1) Verifying procedural rules have been complied with by the institutions
(2) Ensuring reasons for refusal have been given by the institution
(3) Ensuring facts are stated correctly
(4) Overturning refusal only if there is a manifest error on the part of the institution

Is Transparency a General Principle of EU Law?

While it is clear that the EU recognises transparency as a principle of good administration, it is

not so clear that it is viewed as a general principle of EU law. If it is, then there are significant
consequences if an institution acts in an untransparent way. A breach of a general principle is
grounds for judicial review. It is also possible to claim for damages.

In Hautala the CJEU stated that it was not necessary to decide if transparency was a general
principle. However since the enactment of the Regulation and the Lisbon reforms, it is likely that
it is a general principle. But according to Craig & De Burca, this does not make that much
difference. What will matter is how the courts apply the principle to individual cases.
Transparency as a general principle gives individuals a vague right to information whereas the
Regulation gives specific and detailed rights in certain areas.