Judgment has recently been given in the ECJ case of Isabella Scippacercola v Commission (2005). In this case Isabella Scippacercola was asking for the annulment of a Commission decision not to release information relating to the cost-benefit analysis of the construction of Spata airport. The Commission had refused to release the information because, under Declaration 35 attached to the Final Act of the Treaty of Amsterdam, an institution is not allowed to release information when the Member State from whom the information originates refuses permission. Isabella Scippacercola appealed this decision but the court dismissed the appeal.
Isabella Scippacercola argued that the cost-benefit analysis was drawn up by a bank and therefore the document did not originate from a Member State. It was further argued that to conclude the document did originate from a Member State (because it was submitted by a Member State) would give third parties a shield to hide behind. All a third party would need to do would be to get a Member State to submit their (the third party’s) document and then have the Member State ask that it not be revealed. The ECJ disagreed with this construction. The ECJ concluded that because the third party had been commissioned to produce the document on behalf of the Greek national authorities, the document had been drawn up on behalf of a Member State. Therefore, it was right to consider that the document had originated from a Member State.
The right to obtain documents from the Council, Commission or Parliament is laid out in EC Regulation No. 1049/2001 (the “Regulation”). The EC approach to Freedom of Information is broadly similar to that of the UK although they do specify documents in the Regulation and not merely information. The Regulation contains many of the same elements as UK law such as the public interest test, exceptions and time limits on compliance. However, in accommodating Member States the EC has given more scope to the protection of documents originating from third parties and importantly there is a provision for all third parties to be consulted in some cases before release; this goes further than the UK model.