General Court of the EU rules in favour of European law professor’s access to documents case against the Commission. Inter alia, the latter argued -unsuccessfully- that it could not provide timely and complete access due to temporary staff shortages.
On 27 January, the General Court of the EU ruled in favour of a European law professor Laurent Pech in an access to documents case, the latter reported. The judgment itself is not yet published. In case T-485, brought in September 2024, Pech had sought the have a Commission annulled which had denied him access to a number of documents mentioned in the Commission’s press release IP/24/2461 dated 6 May 2024, announcing its intention to close the Article 7(1) TEU procedure for Poland. Under this procedure, to which Poland had been subject for the past number of years, Poland risked having its voting rights suspended for serious and systemic breaches of the rule of law. After the incoming Tusk government sent a number of signals of intent to roll back or contain these breaches, the Commission closed the procedure. This occurred at short notice and in spite of the strong misgivings expressed by various legal scholars and experts that this had as of yet resulted in precious little de facto reforms.
Following the 6 May announcement of the Commission, Pech sought access to the underlying analysis justifying this decision. By July, no decision had yet been taken by the Commission, in spite of the legally prescribed response deadline having been grossly exceeded, after which Pech filed an administrative appeal. On 6 September, this result in an implied decision as the Commission had still not reached a decision. The Commission announced its upcoming decision a day after Pech brought a case for annulment at the Luxembourg court. This then resulted in a legal win for Pech, and the disclosure of documents relevant to the Commission’s decision.
In a LinkedIn post, Pech writes:
Pleased to report my latest EU rule of law related litigation win (following my previous win against the Council supported by the Commission and France [of 8 June 2023]). In a nutshell, the EU Commission persistently refused to reply to my access to documents request concerning the closure of Art 7(1) TEU proceedings in respect of Poland (in my view, prematurely closed from a legal point of view with the lack of transparency in this instance furthermore incompatible with relevant EU requirements and deliberately organised to prevent scrutiny). It took the lodging of an annulment application to get relevant docs with the issue then becoming one of cost allocation. In this context, hopeless arguments were raised (staff shortages due to summer holidays was presented as objective reason to ignore my first and appeal FoI applications).
Pech, a specialist of the rule of law in European law, has been closely following its breaches in various member states for years, actively and sometimes vocally advocating for the EU to take a more active stance. This turned him into a formidable access to documents activist, as he sought to challenge the EU institutions’ obfuscated manner of dealing with rogue member states.
Pech also alluded to the shoddy compliance track record of the Commission, as evidenced in this case (where various response deadlines were breached) as well as in Pech’s earlier court case win against the Council, when the Council rehashed, in an almost identical manner, a legal line of argumentation that had been invalidated by the EU court over a decade earlier.
The compliance track record has been a serious source of concern in the area of EU transparency obligations. Outgoing European Ombudsman O’Reilly repeatedly raised this as an issue during her tenure. In her recent goodbye interview, she expressed concerns over what she described as the Commission’s growing opacity.
