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2018-09 Reports of Cases before the Court of Justice and the Court of First Instance 1 (2018)

handle is hein.intyb/rcbjcofi0407 and id is 1 raw text is: VRw Reports of Cases OPINION OF ADVOCATE GENERAL BOT delivered on 28 November 2017' Case C-57/16 P ClientEarth v European Commission (Appeal - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Request for access to a draft impact assessment report, impact assessment report and opinion of the impact assessment board - General presumption of confidentiality - Refusal to grant access - Legislative documents) I. Introduction 1. The present appeal relates to an action for annulment brought before the General Court of the European Union by ClientEarth against two decisions of the European Commission refusing to grant it access to documents. Specifically, by decision of 1 April 2014, the Commission refused to grant the appellant access to an impact assessment report for a proposed binding instrument setting a strategic framework for risk-based inspections and surveillance for EU environmental legislation, as well as an opinion of the impact assessment board. Furthermore, by decision of 3 April 2014, the Commission also refused to grant the appellant access to a draft impact assessment report relating to access to justice in environmental matters at Member State level in the field of EU environmental policy and an opinion of the impact assessment board ('the documents at issue'). 2. The appellant therefore brought an action against those two decisions, which was dismissed by the General Court by judgment of 13 November 2015, ClientEarth v Commission (T-424/14 and T-425/14, EU:T:2015:848; 'the judgment under appeal'). 3. In that judgment, the General Court essentially found that the documents at issue fell within the same category and that a general presumption of confidentiality applied since their disclosure would undermine the Commission's decision-making process for preparing proposals for legislative acts. 4. The appellant, supported by the Finnish and Swedish Governments, has brought an appeal against that judgment. 5. In the context of that appeal, the primary question on which the Court will have to give a ruling is whether an institution is able to base its refusal to grant access to impact assessments on a general presumption of confidentiality, in the light of the actual nature of those assessments. In doing so, it will have to consider whether, when the Commission prepares acts related to a legislative procedure, it is acting in its legislative capacity. That review will require the Court to adjudicate on the necessary 1 Original language: French. ECLJ:EU:C:2017:9091 1

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