Dr. Patrick Breyer is the group leader for the Pirate Party in the regional parliament of Schleswig-Holstein. He is also a juris doctor, who wrote his thesis on the subject of data retention, and one of Germany’s leading experts on the subject.
In April this year, acting as a private citizen before he was elected, he made a complaint against the EU Commission because the Commission had refused to give access to documents in a court case about the Data Retention Directive and its implementation (Az. T-188/12).
The latest move in the still ongoing court battle between Dr. Breyer and the Commission over transparency, is that the Commission has demanded that Dr. Breyer removes from the internet both his own complaint (pdf, cached) and the Commission’s answer to him (pdf, cached). Dr. Breyer of course refuses to do so.
I find it very remarkable that the Commission apparently is trying to silence an elected member of a parliament who is working on behalf of his constituents
For this reason, I have put the following formal written question to the Commission:
Transparency in court cases about complaints against the Commission
Dr. Patrick Breyer, who is a European citizen and a member of the regional parliament of Schleswig-Holstein, has made a complaint against the EU Commission, because the Commission had refused to give access to documents in a court case regarding the Data Retention Directive and its implementation (Az. T-188/12).
In this context, the Commission has requested that Dr. Breyer removes both his own complaint and the Commission’s answer to him from from the internet, where he has published them.
1. Does the Commission have as a general policy to refuse any access to court documents even in completed cases, such as the case Az. T-188/12 ?
2. If yes, for how long has this policy been in effect, and how many requests for documents have been denied during each year that the policy has been in effect?
3. If no, why did the Commission refuse Dr. Breyer access to those documents?
4. Why has the Commission demanded that Dr. Breyer should remove his complaint against the Commission, as well as the Commission’s answer, from the internet, where he has published them?
5. If a Member of the European Parliament were to republish those two documents, would the Commission issue a similar demand against the MEP? If yes, on what legal basis? If no, why not, considering it has already made this demand on the citizen who made the complaint against the Commission?
An answer from the Commision can be expected in about six weeks, according to the rules for written questions from members of the European Parliament.
The Commission answered:
Answer given by Mr Barroso
on behalf of the Commission
Article 15(3) TFEU is the legal basis for the Commission’s policy on disclosure of submissions to the Courts and this excludes the judicial activities of the Court of Justice of the EU from the public right of access to documents. It complies with the case law of the Court of Justice in API (joined cases C-514//07P, C-528/07P and C532/07P), where the Court ruled that this exclusion is justified to ensure that the exchange of arguments by the parties and the deliberations of the Court take place in an atmosphere of total serenity (cf. paragraph 92 of the judgment).
In closed cases the Commission discloses its own submissions, sometimes expunged in order to protect legitimate interests. The Commission refused Dr Breyer access to submissions from the other party in case T-189/09. The Commission considers that, as a consequence of Article 15(3) TFEU and the case law in API, submissions from other parties to the Courts do not fall within the scope of Regulation (EC) No 1049/2001 regarding public access to documents. This question is sub judice in the case T-188/12 lodged by Dr Breyer.
The Commission has asked Dr Breyer to remove his application to the Court and the Commission’s defence from his website, since, according to the Court’s Rules of Procedure, parties to proceedings receive submissions of the other parties only for the purpose of pursuing their own case. It considers that publication of submissions in pending cases adversely affects the due administration of justice as interpreted by the Court in API and previously in Case T-174/95.
The Commission hopes that, when considering a possible re-publication, Members of the Parliament would base themselves on the Treaty and on the case law of the Court.