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8 Eur. J. Risk Reg. 791 (2017)
On the Administration of Pollution: How Much Space to Think May the EU Claim

handle is hein.journals/ejrr8 and id is 830 raw text is: 







On the Administration of Pollution: How Much

Space to Think May the EU Claim?


Maarten  HILLEBRANDT, Liisa LEPPAVIRTA*




Case C-60/15P,  Saint-Gobain v Commission  ECLI:EU:C:2017:540

Documents   related to environmental  policy which  form part of an administrative
procedure  cannot  be  construed  as seriously undermining   an  ongoing  decision-
making process in the sense of Regulation 1049/2001, Article 4(3), first
subparagraph,   when  read in conjunction  with the second sentence  of Article 6(1)
of  Regulation  1367/2006.   Consequently,  this  exception  to  immediate   public
disclosure as foreseen by Regulation 1049/2001 does not apply.1


                                     I. FACTS

On  13 July 2017, the Court of Justice of the EU (CJEU) delivered its judgment in an
access to documents case brought by a private party (the German glass producer Saint-
Gobain) against an EU institution (the Commission) concerning a document of a national
government   (the Federal Republic  of Germany).   The  judgment's  most  important
contribution is the clear and unambiguous way in which it draws limits to the application
of the exception protecting the institution's ongoing decision-making process; beyond
that, it predominantly throws up new questions that remain unanswered.
  The requested document  was submitted to the Commission as part of an administrative
procedure. It concerned provisional estimates of free emission allowances of German
industries coming under the EU emissions trading system, which were later to be used in
a decision-making process in which emission allowances would be finalised. In line with
the special status of Member States under the access to documents act (Regulation 1049/
2001, Article 4(5)), the Commission consulted the German government  concerning the
possibility of disclosure. The German government  held that access to the document
should be refused, as disclosure would seriously undermine the decision-making process
of the Commission because  the administrative procedure was still ongoing (Article 4(3),
first subparagraph). Article 4(3), known as the space to think clause, protects the

*  Universitt Bielefeld, Germany; maarten.hillebrandt@uni-bielefeld.de; University of Helsinki, Finland; liisa.
leppavirta@helsinki.fi. The authors are grateful to Professor Pivi Leino-Sandberg for comments on an earlier draft.
   Art 4(3) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and
Commission documents [2001] OJ L145/43; Art 6(1) of Regulation (EC) No 1367/2006 on the application of the
provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters to Community institutions and bodies [2006] OJ L 264/13.


European Journal of Risk Regulation, 8 (2017), pp. 791-797
doi:10.1017/err.2017.69


D Cambridge University Press

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