scholarly journals The Anaemic Existence of the Overriding Public Interest in Disclosure in the EU’s Access to Documents Regime

2020 ◽  
Vol 21 (4) ◽  
pp. 686-701
Author(s):  
Daniel Wyatt

AbstractAccording to Regulation 1049/2001, which creates the EU’s public access to documents regime, all EU documents should hypothetically be publicly accessible, except for those that fall within explicitly protected interests. A number of these exceptions to disclosure, however, function such that documents covered by them do not have to be disclosed if their release would harm a protected interest unless there is an “overriding public interest in disclosure” exists in the circumstances. The purpose of this Article is to offer a critical examination of this concept of the overriding public interest as interpreted by the Court of Justice of the European Union (CJEU). In the first part, the notion of the public interest generally is discussed from a theoretical perspective. Following this, a thorough analysis of case law concerning the overriding public interest is presented. Finally, this Article presents a critical commentary of the CJEU’s understanding of the concept. This Article essentially seeks to argue, inter alia, that the CJEU’s interpretation has resulted in democratically unaccountable bureaucrats of the EU effectively becoming the sole arbiters of the existence and content of the overriding public interest in disclosure under Regulation 1049/2001, a situation that is fundamentally unsatisfactory.

2021 ◽  
Vol 9 (1) ◽  
pp. 261-271 ◽  
Author(s):  
Axel Marx ◽  
Guillaume Van der Loo

<p>The EU trade policy is increasingly confronted with demands for more transparency. This article aims to investigate how transparency takes shape in EU trade policy. First, we operationalize the concept of transparency along two dimensions: a process dimension and an actor dimension. We then apply this framework to analysis of EU Free Trade Agreements (FTAs). After analyzing transparency in relation to FTAs from the perspective of the institutional actors (Commission, Council and Parliament), the different instruments and policies that grant the public actors (civil society and citizens) access to information and documents about EU FTAs are explored by discussing Regulation 1049/2001, which provides for public access to European Parliament, Council and Commission documents, and the role of the European Ombudsman. The article is based on an analysis of official documents, assessments in the academic literature and case-law of the Court of Justice of the European Union. The ultimate aim is to assess current initiatives and identify relevant gaps in the EU’s transparency policies. This article argues that the EU has made significant progress in fostering transparency in the negotiation phase of FTAs, but less in the implementation phase.</p>


2016 ◽  
Vol 7 (1) ◽  
pp. 1-17
Author(s):  
Polonca Kovač

Abstract Inspection, as the authoritative supervision of private liable persons to comply their activities with sector-specific laws, should ensure the full implementation of public policies. Slovenia adopted the Inspection Act (IA) in 2002, in order to conduct efficient inspection, and simultaneously guarantee the defence rights of the supervised parties pursuant to the fundamental principles of the EU, the national Constitution, and general Administrative Procedure Act. This article addresses the search for a balance between general codification and sector-related specifics as stipulated by the IA, applying normative, constitutional case law and comparative methods. Special attention is dedicated to the IA rules regarding participants, their legal protection and stages of respective proceedings. It has been concluded that the most of the IA specifics are justified in order to efficiently serve the public interest. This study reveals that the Slovene IA can represent a role model for efficient yet democratic supervision in other MS as well.


Author(s):  
Blanca Ballester Martínez

Regulation 1049/2001 establishes and shapes the right of access to documents in the European Union. This right is limited by a series of colliding principles and rights, such as privacy of personal data, ‘ordre public’ or commercial interests. The European Court of Justice, through rulings by each one of its two Courts (the General Court and the European Court), has shaped and generally extended the scope of Regulation 1049/2001, increasing transparency in the institutions. However, there is no clear case-law trend as regards access to documents, since rulings often contradict each other and precedents are of relatively little value. Recent rulings, such as those given to the Borax and Bavarian Lager cases, seem to restrict public access to documents in the institutions by placing access to documents under other values such as privacy and data protection. This trend seems again to contradict what the Lisbon Treaty and the European Charter of Fundamental Rights have just introduced: a higher consideration of access to documents and a clear commitment with institutional transparency. This paper aims at giving a clear overview of the evolution and state of play of the right of public access to documents in the European legislation and case law. By analyzing the latest legal and jurisprudential developments, it can be concluded that law and case law do not seem to go hand in hand yet and seem to contradict each other. Immediate and further developments should be watched with a careful eye, as these will shape the post-Lisbon concept of access to documents. Consequently, essential principles such as transparency and data protection might undergo as well important changes.El Reglamento 1049/2001 consagra y configure el derecho de acceso público a documentos en la Unión Europea. Este derecho está limitado por ciertos bienes jurídicos en conflicto, como la privacidad de los datos personales, el orden público o los intereses comerciales. El Tribunal de Justicia de la Unión Europea, a través de las sentencias emanadas de sus dos instancias, ha pulido y en general extendido el campo de aplicación del Reglamento 1049/2001, aumentando la transparencia en las instituciones. Sin embargo, no hay una línea jurisprudencial clara al respecto, dado que las sentencias a menudo se contradicen entre sí y los precedentes jurisprudenciales parecen tener escaso valor en los asuntos posteriores. Algunas sentencias recientes, como las recaídas en los asuntos Borax y Bavarian Lager, parecen por el contrario restringir el derecho de acceso a documentos, dado que hacen prevalecer otros bienes jurídicos como la privacidad o la protección de datos. Esta última tendencia parece contradecir al Tratado de Lisboa y a la Carta Europea de Derechos Fundamentales, puesto que éstos han introducido una mayor consideración al derecho de acceso a documentos con el fin de aumentar la transparencia institucional. Este artículo busca procurar una panorámica general de la evolución y el estado actual del derecho de acceso público a los documentos tanto en la legislación como en la jurisprudencia europeas. Del análisis tanto de las novedades legislativas y jurisprudenciales al respecto se deduce que ambas no parecen ir a la par, sino que llegan incluso a contradecirse. El desarrollo futuro tanto de la ley como de la jurisprudencia deberán ser objeto de estudio detallado, dado que serán determinantes en la configuración del derecho de acceso a documentos tras el Tratado de Lisboa. Como consecuencia de esto, puede que ciertos principios también fundamentales, como la transparencia o la protección de datos, sufran importantes cambios en un futuro inmediato.


2021 ◽  
Vol 13 (7) ◽  
pp. 3985
Author(s):  
Adam Kozień

The concept of sustainable development is widely used, especially in social, environmental and economic aspects. The principle of sustainable development was derived from the concept of sustainable development, which appears in legal terms at the international, EU, national and local levels. Today, the value of cultural heritage that should be legally protected is indicated. A problematic issue may be the clash in this respect of the public interest related to the protection of heritage with the individual interest, expressed, e.g., in the ownership of cultural heritage designates. During the research, scientific methods that are used in legal sciences were used: theoretical–legal, formal–dogmatic, historical–legal methods, as well as the method of criticism of the literature, and legal inferences were also used. The analyses were carried out on the basis of the interdisciplinary literature on the subject, as well as international, EU and national legal acts—sources of the generally applicable law. Research has shown that the interdisciplinary principle of sustainable development, especially from the perspective of the social and auxiliary environmental aspect, may be the basis for weighing public and individual interests in the area of legal protection of cultural heritage in the European Union. It was also indicated that it is possible in the situation of treating the principle of sustainable development in terms of Dworkin’s “policies” and allows its application not only at the level of European Union law (primary and secondary), but also at the national legal orders of the European Union Member States.


2011 ◽  
Vol 138 (1) ◽  
pp. 9-20
Author(s):  
Rhonda Breit

A new uniform defamation regime now operates in Australia. This article canvasses the Uniform Defamation Laws (UDLs), focusing on the defence of qualified privilege and its capacity to protect mass media publications in the public interest. Drawing on case law and analysis of the key approaches to statutory privilege, the article evaluates the current approach to statutory qualified privilege. Taking account of observations in O'Hara v Sims (2008, 2009) about the operation of qualified privilege, it questions whether the UDL statutory qualified privilege will ultimately censor publications in the public interest and restrict the application of the qualified privilege defence.


2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.


2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.


2015 ◽  
Vol 109 (1) ◽  
pp. 161-167
Author(s):  
Anne-Marie Carstens

In Technische Universität Darmstadt v. Eugen Ulmer KG, the Court of Justice of the European Union (ECJ or Court) addressed several important copyright issues stemming from a practice that continues to confound many legal practitioners and adjudicators: the mass digitization of library collections. The judgment adds to an emerging body of jurisprudence decided in the context of a trend toward greater digitization that could ultimately facilitate the development of a global, digital library. To date, the jurisprudence has largely been formed by cases challenging mass digitization that are percolating through the United States courts and have attracted international attention and criticism. The ECJ decision thus provides an important point of reference for evaluating how different jurisdictions balance the rights of authors against the public interest, as served by relevant fair use exceptions consistent with their international obligations under traditional copyright treaties, the 1996 WIPO Copyright Treaty, and the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) applicable to all WTO member states.


Author(s):  
Marta Pietras-Eichberger

The study analyzed selected issues related to the scope of human rights and freedoms during the COVID-19 pandemic in Poland and Russia. The author wanted to compare the regulations issued by a Member State of the European Union and a country outside the European Union, often using undemocratic methods of exercising power. The work focuses on research problems related to the principles of protection, the confrontation of individual interests with the public interest, and the impact of the regimes introduced during the COVID-19 pandemic on human rights law in both countries. The thesis of the study is that in the event of a threat to public health, analogous restrictions on human rights are introduced both in an undemocratic country and in a country belonging to international structures identifying with democratic values. The state of the COVID-19 pandemic has exposed, and in some area even contributed to the creation of mechanisms reserved for crisis situations, posing a direct and real threat to public safety and health.


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