Currently the EU has one of the more modern freedom of information acts in the world. A law that can be improved, of course, but a strong law all right. Yet it is young, and the European Court of Justice is still working on the case law.

In the recent judgements, the European Court several times has ruled in favour of transparency for citizens, for companies, for the public interest.

An opinion this week by the Advocat General in a transparency case appeared to follow that line. The protective exceptions to the general right to access have to be used carefully, the opinion confirmed.  She thus confirmed the previous judgement by the Court of First Instance and overruled the appeal by the Commission – who was reluctant to grant access to the documents concerning this state-aid case.

Yet the Advocat General Juliane Kokott, the judges, the European Court of Justice and most importantly the public are running against time: If the draft reform of the European access to documents regulation is passed as suggested by the Commission, the Court may lose this case anyway.

Not because it misinterprets, what the politicians decided when passing the access to documents regulation. But because the Commission has drafted the new regulation in a way, that cases like the one in this court-case will be entirely taken out of the reach of public scrutiny, if the reformed law is passed as drafted.

The current case is about the glas manufacturer TG Ilmenau in the town of Ilmenau in rural Eastern Germany, only a short drive from the woods, where until 20 years ago the iron curtain prevented openness and free movement – at least in some directions.

It’s a state aid case, where Germany routinely told the Commission, that there was public funding involved in a project for this company, and a few years later the Commission opened a case to cross-check. So far nothing special.

However when TG Ilmenau used every Europeans right to ask for some documents in and around the case, the Commission turned the company down referring to an exception protecting ongoing cases.

Transparency is limited, because publication may not disturb ongoing investigations, inspections and audits. Fair enough. None of the good guys in a crime story would ever tell the bad guys, that the police is on the way, so the bad guys can clean up what needs to be cleaned up.

But the European Court of First Instance supported TG Ilmenau. In the summary of the judgement it basically told the Commission, that it was too easy to just deny access referring to this being an ongoing case:

The mere fact that a document referred to in an application for access (…) concerns an interest protected by an exception cannot justify application of that exception.

Also the exception should always be weighed against the public interest in a document, the Court ruled.

The judgement was made public back in December 2006. The lost case thus may have been on the top of the memory of those officials, who drafted the green paper for the reform of the right to documents law, which was sent to public hearing in May 2007.

According to the draft law’s article 2.6 “documents forming part of the administrative file of an investigation or of proceedings concerning an act of individual scope shall not be accessible to the public until the investigation has been closed or the act has become definitive. Documents containing information gathered or obtained from natural or legal persons by an institution in the framework of such investigations shall not be accessible to the public.”

The draft new access-regulation is currently dealt with by the Parliament and the Council. It will be interesting to see, whether the view of the Court supporting public access or the view of the Commission will win in the end.

Read a summary of this weeks Court opinion on Wobbing in Europe / Read the state of play of the reform of the regulation here and here.