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](ViewImageLocal?handle=hein.journals/ejrr8&div=89&collection=&method=preview&ext=.png&size=3)
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On the Administration of Pollution: How Much "Space to Think" May the EU Claim?
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