The ‘presumption of confidentiality’ between EU institutions and their contacts can not be used anymore to reject access to document requests, if the European Court of Justice follows yesterday’s opinion by the General Advocat on the ‘Bavarian Lager’ case in its entity.

Given the fact, that the European administration is marred by a clash of administrative cultures when it comes to access to information, this could become a big step in favour of more transparency, if the court adopts the argument of the General Advocat.

European administration is – like Europe – a colourful mixture of different traditions. Sweden – to mention the frontrunner – has had a freedom of information law since 1766, and generally the Nordic countries plus Britain, Ireland, the Netherlands, Slovenia and others consider information held by the public administration public information – with the usual exceptions to protect privacy, security and so on. However classic continental administration until recently completely followed the opposite idea: Officials thus had to protect documents, also protect them against the public. The ‘presumption of confidentiality’ or the German ‘Amtsgeheimnis’ or ‘Amtsverschwiegenheit’ are expressions of this approach. Abolishing them constitutes a revolution in some administrative traditions. Which does, of course, require a change of mindset for the officials who have been educated within these administrative traditions.

Will the European Court of Justice manage to push this revolution in the European administration? With this option in the upcoming decision in the Bavarian Lager case grows more and more interesting.

The case used to be about Bavarian beers back in the 1990ies. Since then it has turned into a prominent case about transparency, access to information and protection of personal data.  If the European Court of Justice follows the opinion of the general advocate published yesterday, European institutions in the future will have to notify their contacts, that their names can be revealed to the public under the access to documents regulation.

“The principle of transparency requires that the Commission should inform such outside interlocutors that their presence at any particular meeting will be made public to the extent to which documents are disclosed in accordance with Regulation No 1049/2001. It cannot invoke a supposed ‘presumption of confidentiality’ (to which the Commission baldly refers in its appeal) in order never to disclose their names.” (recital 200 of the opinion).

The Bavarian Lager case tries to find a balance between the public’s right to information and the protection of personal data. General advocate Eleanor Sharpston applies a highly systematic approach, so that the choice of law – access to information or protection of personal data – should depend on the reason why the information is held. Thus she makes a distinction between “ordinary documents that contain an incidental mention of personal data” and documents that “contain a large quantity of personal data (for example, a list of persons and their characteristics). The raison d’être of (these) documents is, precisely, to gather together such personal data.” (recital 159).

The Bavarian Lager case is followed closely, as it is considered a key-case on the question into the protection of personal data when releasing documents to the public.

In her opinion the general advocate gives a step-by-step introduction on how to deal with such cases, which appears to address exactly the insecurity that currently is connected to the question (recitals 158-166).

Eleanor Sharpston also chooses to respond on the question, whether the institutions – in this case the Commission – should be allowed to withhold names from the public in order to protect investigations.

“In summary, the Commission argues that the interpretation in the judgment under appeal takes no account of the need for the Community institution to guarantee, in certain circumstances, confidentiality for persons providing it with information in the course of its investigative activities. Without that power to cloak its sources of information with secrecy, the Commission risks losing an essential working tool for conducting its inquiries and investigations.   I do not agree with the Commission.” (recitals 196-197).

Here it is important to note, that she also mentions the timing of the investigation – important not only in the Bavarian Lager case but also in the upcoming reform of the EU access to documents regulation. “No investigation was pending or, indeed, even recently concluded.” (recital 200).

Though the Commission should inform contacts of the access to information regulation, the general advocate recognizes the need to promise anonymity “in certain very specific circumstances.”

Once the court will have made its decision, the Bavarian Lager case must be expected to be of weighty importance for the future of public access to documents in the EU.

Until the Court will have spoken, the rules are defined by the Court of First Instance judgement in the Bavarian Lager case, the guidelines by the European Data Protection Supervisor and the analysis by the European Ombudsman.