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THE PRINCIPLE OF DEMOCRACY IN THE CASE LAW OF THE EUROPEAN COURT OF JUSTICE

Published online by Cambridge University Press:  09 April 2013

Koen Lenaerts
Koen Lenaerts*
Affiliation:
Vice-President of the European Court of Justice, and Professor of European Union Law, Leuven University, koen.lenaerts@curia.europa.eu.
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Abstract

This article seeks to explore the way in which the Court of Justice of the European Union (‘CJEU’) has interpreted and applied the principle of democracy. It examines first the democratization process upon which the EU has embarked since the adoption of the Treaty of Maastricht and how that transformation was a positive reaction to those voices arguing that the EU suffers from a ‘democratic deficit’. Next, it is argued that the CJEU has understood the principle of democracy in a way which is respectful of the two sources of democratic legitimacy at EU level, namely the Member States and the peoples of Europe. Accordingly, that understanding of the principle of democracy is illustrated by some relevant examples taken from the case law of the CJEU and the European General Court (‘EGC’). Those examples show that the CJEU has strived to protect the prerogatives of the European Parliament, the only political institution of the EU whose members have, since 1979, been elected for a term of five years by direct universal suffrage in a free and secret ballot. Yet, they also show that the principle of democracy is not limited to protecting parliamentary prerogatives. That principle, like all EU constitutional principles, pervades the whole of EU law and, as such, must be read in light of societal changes. As democracy within the EU is not limited to the participation by the European Parliament in the legislative process but also encompasses other forms of governance, in particular rule-making by administrative agencies and the achievement of consensus by social partners, it is for the EU judiciary to make sure that those other forms of governance remain as democratic as possible. This can be achieved, inter alia, by making sure that they enjoy sufficient representation or are subject to parliamentary control. Furthermore, the CJEU and the EGC also take into account new mechanisms which seek to strengthen the principle of democracy, such as the principle of transparency. In so doing, they aim to enhance the democratic legitimacy of the EU by providing sufficient means for EU citizens to hold their representatives accountable. Finally, it is contended that the principle of democracy, as interpreted by the CJEU, draws inspiration from national democracies. In so doing, the CJEU strives to place national and supranational democracies in a mutually reinforcing relationship.

Keywords

access to documentsaccountabilityadministrative agenciesdemocracydemocratic deficitEuropean Court of JusticeEuropean Parliamentinstitutional balancenational democraciesnational parliamentsparliamentary immunityparliamentary independencerepresentative democracysocial dialoguetransparency
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 2 , April 2013 , pp. 271 - 315
Copyright
Copyright © British Institute of International and Comparative Law 2013

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References

1 See Berglar, P, Thomas More: A Lonely Voice Against the Power of the State (Scepter Publishers 1999)Google Scholar.

2 Mancini, F and Keeling, DT, ‘Democracy and the European Court of Justice’ (1994) 57 ModLRev 175Google Scholar, 176–7.

3 ibid.

4 But see Moravcsik, A, ‘Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis’ (2002) 39 JComMarSt 336–63Google Scholar (who argues that the EU does not suffer from a fundamental democratic deficit, given that ‘[a]bove all, the democratic legitimacy of the EU rests on the fact that nation-states remain influential, democratic and technically competent’). In a similar vein, see also Majone, G., ‘Europe's “Democratic Deficit”: The Question of Standards’ (1998) 4 ELJ 5CrossRefGoogle Scholar.

5 See Follesdal, A and Hix, S, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 JComMarSt 533Google Scholar.

6 Craig, P, ‘Integration, Democracy, and Legitimacy’ in Craig, P and De Búrca, G (eds), The Evolution of EU Law (2nd edn, OUP 2011) 13, 30–1Google Scholar.

7 See Follesdal and Hix (n 5) 547.

8 See Bredt, S, ‘Prospects and Limits of Democratic Governance in the EU’ (2011) 17 ELJ 35, 39–41CrossRefGoogle Scholar.

9 See Craig (n 6) 30.

10 A von Bogdandy, ‘The European Lesson for International Democracy : The Significance of Articles 9 to 12 EU Treaty for International Organizations’ (2011) Jean Monnet Working Paper Series, No 02/11, available at <www.JeanMonnetProgram.org>.

11 Art F of the 1992 Treaty on the European Union stated that ‘[t]he Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ There was also a reference to ‘democracy’ contained in the 5th Recital of the Preamble, which stated that the Member States confirmed ‘their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’.

12 Art 2 TEU largely reproduces ex-art 6(1) EU, replacing nonetheless the term ‘principle’ with the term ‘value’.

13 von Bogdandy (n 10) 7. See generally Lenaerts, K and Van Nuffel, P, European Union Law (3rd edn, Sweet & Maxwell 2011) 735–49Google Scholar.

14 A good example of this is the role played by the European Parliament in countering the European debt crisis, which required the adoption of important decisions at EU level. Notably, the European Parliament acted as co-legislator in relation to four Regulations forming part of the ‘Six-Pack’ package. See Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area, [2011] OJ L 306/1; Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area, [2011] OJ L 306/8; Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No. 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies, [2011] OJ L 306/12, and Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances, [2011] OJ L 306/25.

15 See Craig (n 6) 31–2.

16 ibid.

17 See Protocol (No 1) on the role of National Parliaments in the European Union and Protocol (No 2) on the application of the principles of subsidiarity and proportionality.

18 See, in this regard, art 10(2) TEU which states that ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens’. In this regard, it is worth noting that the 2011 European Union Act lists a series of EU decisions the approval of which is subject either to referendum, primary legislation or parliamentary approval.

19 See Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [2006] OJ L 200/11 (the amended ‘Second Comitology Decision’). Article 12 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers, [2011] OJ L 55/13, repeals Decision 1999/468/EC. This means that the RPS no longer applies, notwithstanding the fact that the effects of the latter ‘shall be maintained for the purposes of existing basic acts making reference thereto’.

20 See art 5a of Decision 1999/468/EC.

21 However, the European Parliament had only three months to exercise its veto. If it failed to do so, its only option was to bring an action for annulment against the delegated act in question. See eg Case C-355/10 Parliament v Council, judgment of 5 September 2012, not yet reported, para 22.

22 See Schütze, R, ‘“Delegated” Legislation in the (new) European Union: A Constitutional Analysis’ (2011) 74 MLRev 661, 663Google Scholar.

23 ibid 683. The author notes that art 290 TFEU has codified the ‘non-delegation doctrine’. In Case C-355/10 Parliament v Council (n 21) paras 64–65, the CJEU explained the rationale underpinning that doctrine. It held that ‘[t]he essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated’, since ‘[they] require political choices falling within the responsibilities of the European Union legislature’.

24 See art 291(2) TFEU which states that ‘[w]here uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 [TEU], on the Council’. Accordingly, in relation to ‘implementing acts’, the European Parliament has no direct participation. Its role is limited to laying down the general guidelines with which the Commission and, as the case may be, the Council must comply. In this regard, see the new Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers, [2011] OJ L 55/13. Needless to say, some scholars have already pointed out that, in some cases, it will be very difficult, if not impossible, to draw a clear-cut distinction between those two categories of non-legislative acts. See Craig, P, ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’ (2011) 36 ELR 671Google Scholar; Peers, S and Costa, M, ‘Accountability for Delegated and Implementing Acts after the Treaty of Lisbon’ (2012) 18 ELJ 427CrossRefGoogle Scholar. In Case C-427/12 Commission v Parliament and Council (pending), the CJEU will be asked to rule on this delicate issue.

25 For Craig (n 24) 672, whilst delegated acts are ‘quasi-legislative’ in nature, implementing acts are ‘purely executive’. Arguably, from a democratic perspective, the fact that the powers of oversight of the European Parliament are greater in relation to delegated acts than in relation to implementing acts makes sense.

26 Perhaps, this is the reason why Craig argues that ‘[the European Parliament] is accorded an important power that it did not have hitherto’. See Craig, P, ‘The Role of the European Parliament under the Lisbon Treaty’ in Griller, S and Ziller, J (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer 2008) 109CrossRefGoogle Scholar, 115.

27 See Schütze (n 22) 685.

28 Lenaerts and Van Nuffel (n 13) 746 ff.

29 Joined Cases C-92/09 and 93/09 Volker und Markus Schecke [2010] ECR I-11063, para 68.

30 See Prechal, S and De Leeuw, ME, ‘Transparency: A General Principle?’ in Bernitz, U, Nergelius, J and Cardner, C (eds), General Principles of EC Law in a Process of Development, European Monograph 62 (Kluwer 2008) 201Google Scholar.

31 This obligation is now laid down in art 15(3) TEU.

32 See De Leeuw, ME, ‘Openness in the Legislative Process in the European Union’ (2007) 32 ELRev 295Google Scholar.

33 See Prechal and De Leeuw (n 30) 207.

34 See art 16(8) TEU.

35 See Lenaerts, K and Cambien, N, ‘The Democratic Legitimacy of the EU after Lisbon’ in Wouters, J, Verhey, L and Kiiver, P (eds), European Constitutionalism beyond Lisbon (Intersentia 2009) 185Google Scholar.

36 Lenaerts and Van Nuffel (n 13) 741.

37 See art 5(2) TEU which provides that ‘[c]ompetences not conferred upon the Union in the Treaties remain with the Member States’.

38 See art 2 TFEU.

39 See arts 3–6 TFEU.

40 See Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative [2011] OJ L 65/1.

41 See also art 2 TEU (‘solidarity’ as one of the values on which the European Union is founded) and art 3(3) TEU (‘combating social exclusion’, ‘social justice’, ‘social protection’, ‘equality between women and men’, ‘solidarity between generations'and ‘protection of the rights of the child’). See also art 31 of the Charter.

42 See the Opinion of AG Cruz Villalón in Case C-515/08 dos Santos Palhota and Others, delivered on 5 May 2010, not yet reported, para 51 (defining art 9 TFEU as a ‘cross-cutting’ social protection clause).

43 See Craig (n 6) 28–9.

44 See Follesdal and Hix (n 5). In addition, some scholars posit that elections for the European Parliament do not really focus on EU policy. Hence, when citizens cast their votes, they do so following the logic of national politics. Arguably, this lack of perception of the elections for the European Parliament as a recurrent expression of representative democracy, allowing voters to express dissatisfaction with EU policies, might explain, at least to some extent, why referenda on Treaty changes are being used to that effect, leading inter alia to the negative outcome in the French and Dutch referenda held in 2005 on the Treaty establishing a Constitution for Europe. See Hix, S and Marsh, M, ‘Punishment or Protest? Understanding European Parliament Elections’ (2007) 69 Journal of Politics 495CrossRefGoogle Scholar; and Lenaerts and Van Nuffel (n 13) 743.

45 See Moravcsik (n 4).

46 See generally Scharpf, F, Governing in Europe: Effective and Democratic? (Oxford University Press 1999)CrossRefGoogle Scholar.

47 von Bogdandy (n 10) 11.

48 Lenaerts and Van Nuffel (n 13) 738–9.

49 The same applies in relation to democratically elected regional or local officials. See, in this regard, Lenaerts, K and Cambien, N, ‘Regions and the European Court: Giving Shape to the Regional Dimension of the Member States’ (2010) 35 ELR 609Google Scholar. See also Lenaerts, K, ‘Federalism in 3-D’ in Cloots, E, De Baere, G and Sottiaux, S (eds), Federalism in the European Union (Hart Publishing 2012) 13Google Scholar.

50 BVerfG, 2 BvR 1390/12 vom 12.9.2012, Absatz-Nr. (1-248), para 195. It is also worth recalling that, in its Lisbon Case, the Bundesverfassungsgericht expressed the view that the European Parliament is not ‘the representative body of the [European] people’ since its members are not elected in accordance with a strict rule of democratic equality, ie the ‘one (wo)man one vote’ principle. See BVerfG, 2 BvE 2/08 vom 30.6.2009, Absatz-Nr. (1-421), paras 280–288.

51 Art 13(2) TEU.

52 Case C-138/79 Roquette Frères v Council [1980] ECR 3333.

53 Case 294/83 Les Verts v Parliament [1986] ECR 1339.

54 Case C-70/88 Parliament v Council [1991] ECR I-2041.

55 Case C-300/89 Commission v Council [1991] ECR I-2867.

56 See art 13(2) TEU.

57 Case C-138/79 Roquette Frères v Council (n 52) para 33.

58 See Tridimas, T and Gari, G, ‘Winners and losers in Luxembourg: a statistical analysis of judicial review before the European Court of Justice and the Court of First Instance (2001–2005)’ (2010) 35 ELRev 131Google Scholar, 172 (who point out that ‘[i]n the 1990s, the European Parliament was an active litigant following a tactical litigation policy under which it challenged practically any policy measure which allegedly breached its prerogatives even if it agreed with its substantive provisions. But as successive [T]reaty amendments increased its legislative powers, the need to rely on litigation to influence the legislative process steadily declined and the Parliament now finds itself much more often in the role of the defendant than in the role of the applicant’).

59 See art 294 TFEU.

60 Case C-130/10 Parliament v Council, judgment of 19 July 2012, not yet reported.

61 Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, [2009] OJ L 346/42.

62 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, [2002] OJ L 139/9.

63 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.

64 That Treaty provision is located in Part Five of the TFEU entitled ‘The Union's External Action’.

65 Under ex-art 308 EC, the European Parliament had to be consulted.

66 Case C-130/10 Parliament v Council (n 60) para 49.

67 See art 3(2) TEU.

68 See arts 21(2)(c) TEU and 43(1) TEU.

69 In this regard, the CJEU noted that, unlike art 75 TFEU, art 215(2) TFEU creates a ‘bridge’ between decisions taken under the CFSP and EU restrictive measures. See Case C-130/10 Parliament v Council (n 60) para 47.

70 ibid para 83.

71 Indeed, as art 10(2) TEU states, ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens’.

72 Lenaerts and Van Nuffel (n 13) 742.

73 Ahmed et al v HM Treasury [2010] UKSC 2 (SC).

74 R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131.

75 Johnston, A and Nanopoulos, E, Case Comment: ‘The new UK Supreme Court, the separation of powers and anti-terrorism measures’ (2010) 69 Cambridge Law Review 217CrossRefGoogle Scholar, 220.

76 The latest version of the Rules of Procedure can be found at the website of the European Parliament: <http://www.europarl.europa.eu/aboutparliament/en/00a4c9dab6/Rules-of-procedure.html>.

77 See Case T-222/99 Martinez and Others v Parliament [2001] ECR II-02823 (confirmed on appeal by order of the CJEU in Case C-486/01P Front National v Parliament [2004] ECR I-6289).

78 ibid paras 59–62.

79 ibid paras 65–72.

80 ibid para 102.

81 ibid para 146.

82 ibid para 148.

83 ibid para 160.

84 See the 1976 Act concerning the election of the members of the European Parliament by direct universal suffrage.

85 See art 10(4) TEU which states that ‘[p]olitical parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union’.

86 In particular, it is very important for the European Parliament to be united when entering into negotiations with the Council. In this regard, see Case T-222/99 Martinez and Others v Parliament (n 77) para 147 (where the EGC held that ‘… the proper functioning and conduct of the [ordinary legislative procedure] requires that, where recourse must be had to the Conciliation Committee … in order to reach an agreement on a common project, political compromises be first worked out within the Parliament. It is then necessary for the Parliament's delegation entrusted with the task of negotiating with the Council in the Conciliation Committee to be made up of Members able to reflect the political composition of the Parliament, authorised to speak on behalf of other Members and in a position to be supported once an agreement is found with the Council; to that a political group can effectively contribute, unlike a group consisting of Members who do not share political affinities’).

87 See Mehta, RS, ‘Sir Thomas’ Blushes: Protecting Parliamentary Immunity in Modern Parliamentary Democracies’ (2012) 3 EHRLR 309, 313Google Scholar.

88 See eg ECtHR, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 22–23, section 42.

89 See eg ECtHR, Fayed v the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, pp. 49–50, section 65.

90 Case C-163/10 Patriciello, judgment of 6 September 2011, not yet reported.

91 ibid para 13. In accordance with art 68 of the Italian Constitution, such immunity ‘does not cover extraparliamentary activities unless they are closely linked to the performance of duties typical of the parliamentary mandate, and carried out strictly for the purposes of that mandate’. However, the referring court found that by (wrongfully) accusing a public official of forgery of official documents, Mr Patriciello was not performing any parliamentary duties.

92 Joined Cases C-200/07 and C-201/07 Marra [2008] ECR I-7929.

93 Patriciello (n 90) para 26.

94 ibid para 27.

95 ibid paras 39–40.

96 ibid para 32.

97 ibid para 37.

98 R v Chaytor [2010] UKSC 52 (SC).

99 ibid para 47.

100 Y Tew, Case Note on R v. Chaytor (2011) 70 CLJ 282, at 284.

101 See Lenaerts, K, ‘“In the Union we trust”: Trust-enhancing principles of Community law’ (2004) 41 CMLRev 317Google Scholar.

102 See generally Thatcher, M and Stone Sweet, A, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West European Politics 1CrossRefGoogle Scholar.

103 See eg S Bredt (n 8) 55 ff.

104 The expression ‘discrete and insular minorities’ is borrowed from fn 4 in United States v Carolene Products Company, 304 U.S. 144 (1938).

105 Case C-518/07 Commission v Germany [2010] ECR I-1885. See also Case C-614/10 Commission v Austria, judgment of 16 October 2012, not yet reported.

106 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ L 281/31.

107 Emphasis added.

108 Case C-518/07 Commission v Germany (n 105) para 9.

109 ibid para 15.

110 ibid para 19. See also Case C-614/10 Commission v Austria (n 105) para 43 (where the CJEU held that ‘the second subparagraph of Article 28(1) of Directive 95/46 is intended to preclude not only direct influence, in the form of instructions, but also … any indirect influence which is liable to have an effect on the supervisory authority's decisions’).

111 See Opinion of AG Mazák in Case C-518/07 Commission v Germany (n 105) para 30.

112 Case C-518/07 Commission v Germany (n 105) para 18.

113 ibid para 19.

114 ibid para 23.

115 ibid para 25.

116 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, [2001] OJ L 8/1.

117 Case C-518/07 Commission v Germany (n 105) para 28.

118 ibid para 34.

119 ibid para 35.

120 ibid para 42.

121 Art 28 of Directive 95/46 states that ‘Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts’.

122 See art 42 of Regulation No 45/2001.

123 See art 47 of Regulation No 45/2001.

124 See art 48 of Regulation No 45/2001.

125 Case C-518/07 Commission v Germany (n 105) para 46.

126 The fields where the special legislative procedure applies are the following: ‘(c) social security and social protection of workers, … (d) protection of workers where their employment contract is terminated, (f) representation and collective defence of the interests of workers and employers, including co-determination, and (g) conditions of employment for third-country nationals legally residing in Union territory’.

127 Case T-135/96 UEAPME v Council [1998] ECR II-2335.

128 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, [1996] OJ L 145/4.

129 Bercusson, B, ‘Democratic Legitimacy and European Labour Law’ (1999) 28 ILJ 153CrossRefGoogle Scholar, 154.

130 Case T-135/96 UEAPME v Council (n 127) para 89.

131 ibid para 94.

132 ibid para 90 ff; on the challenges and opportunities resulting from this approach, see Bercusson, B, ‘Democratic Legitimacy and European Labour Law’ (1999) 28 ILJ 153CrossRefGoogle Scholar, 165–70; Moreau, M.-A., ‘Sur la représentativité des partenaires sociaux européens’ (1999) 62 Droit Social 53Google Scholar, 56–7; Adinolfi, A, ‘Admissibility of Action for Annulment by Social Partners and “Sufficient Representativity” of European Agreements’ (2000) 25 ELR 165, 176Google Scholar.

133 Bercusson (n 132) 155–9; Moreau (n 132) 56.

134 COM (93) 600 final, para 24.

135 Case T-135/96 UEAPME v Council (n 127) para 102. This has also been the subject of criticism; see Bercusson (n 132) 159; Adinolfi (n 132) 176.

136 Case T-135/96 UEAPME v Council (n 127) para 89.

137 ibid paras 77–80; Bercusson (n 132) 159.

138 Case T-135/96 UEAPME v Council (n 127) paras 90 ff; Bercusson (n 132) 160–3.

139 Whether this is the most legitimate or appropriate forum to settle industrial relations is doubted in legal literature, see Moreau (n 132) 58–9; Bercusson (n 132) 170.

140 Case T-135/96 UEAPME v Council (n 127) paras 111–112.

141 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, [2001] OJ L 145/43.

142 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, para 34.

143 See art 1 of Regulation No 1049/2001.

144 See art 2(1) and 2(3) of Regulation No 1049/2001.

145 See art 3(a) of Regulation No 1049/2001.

146 See art 6(1) of Regulation No 1049/2001.

147 See the 11th recital of Regulation No 1049/2001.

148 See eg Case C-266/05 P Sison v Council [2007] ECR I-1233, para 63; Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council (n 142) para 36; Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, para 73.

149 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council (n 142) para 50; Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885, para 54; Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission (n 148) paras 73 ff.

150 Case C-506/08P Sweden v Commission and MyTravel, judgment of 21 July 2011, not yet reported.

151 Case T-233/09 Access Info Europe v Council, judgment of 22 March 2011, not yet reported.

152 Case T-342/99 Airtours v Commission [2002] ECR II-2585.

153 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, [2004] OJ L 24/1. See also Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, [2004] OJ L 133/1.

154 Case T-403/05 MyTravel v Commission [2008] ECR II-2027. However, in relation to working document No 15, the EGC held that the Commission had failed to prove that disclosure of that document could threaten its capacity to carry out inspections, investigations and audits. See ibid, paras 80–81. However, that part of the judgment did not form part of the subject matter of the appeal.

155 Adamski, D, ‘Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European courts’ (2012) 49 CMLRev 521, 528–9Google Scholar (opining that ‘the General Court established an overarching general presumption of non-disclosure’).

156 Case T-403/05 MyTravel v Commission (n 154) para 74.

157 ibid paras 48–53.

158 ibid para 54.

159 ibid paras 124–126.

160 Case T-212/03 MyTravel v Commission [2008] ECR II-1967.

161 Case C-506/08P Sweden v Commission and MyTravel (n 150) para 80.

162 ibid paras 87–88.

163 See Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council (n 142) paras 59 ff.

164 Case C-506/08P Sweden v Commission and MyTravel (n 150) para 113.

165 ibid para 115

166 ibid para 116.

167 Adamski (n 155) 533.

168 ibid.

169 ibid 532.

170 Case T-233/09 Access Info Europe v Council (n 151) para 30.

171 ibid para 35.

172 ibid para 36.

173 See Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council (n 142) para 46.

174 Case T-233/09 Access Info Europe v Council (n 151) para 57.

175 ibid para 60.

176 ibid para 69.

177 ibid para 76.

178 ibid para 78.

179 See Case C-280/11P Council v Access Info Europe (pending).

180 Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055 para 49.

181 See Case T-194/04 Bavarian Lager v Commission [2007] ECR II-4523; set aside on appeal by Case C-28/08 P Commission v Bavarian Lager (n 180).

182 See the Opinion of AG Sharpston in Case C-28/08 P Commission v Bavarian Lager, (n 180) para 1.

183 Case T-194/04 Bavarian Lager v Commission (n 181) para 107.

184 ibid para 109.

185 ibid paras 110–120.

186 ibid para 133.

187 Case C-28/08 P Commission v Bavarian Lager (n 180) para 59.

188 ibid para 75.

189 ibid para 77.