New judgment of the CJEU: Access to Documents on NB

On the 5th of December 2018, the General Court (the Court) delivered a judgment (currently only in French and Italian language) on access to documents of EU institutions related to Notified Bodies.

Facts of the case

Falcon Technologies International, a manufacturer of CD-ROM/DVD-ROM, which are storing radio diagnostic images obtained a CE Certificate by a Notified Body (NB) for Class IIa devices in 2015. By a decision of the Italian Ministry of Health, the CE Certificate was revoked a year later (products are not Class IIa medical devices) despite the Ministry confirming the classification in 2009. The applicant started proceedings at national level but also requested access to documents of the EU Institutions, i.e. the Report assessing their NB issued by the European Commission. The request was rejected, as even a partial ‘’meaningful’’ access to the Report could harm commercial interests (reputation) of the NB.

Judgment of the Court

The Court first declared that the NB despite executing tasks of public interest is a private entity that has commercial interests, and can claim protection of its reputation.

Secondly, the Court confirmed that everyone residing in the EU can request access to documents of the EU institutions without any need for special justification of their request, as well as that such access should be as wide as possible (and exceptions interpreted strictly). Moreover, there is no need to prove that such document needs to be useful to the applicant.

‘’En effet, toute personne peut demander à avoir accès à n’importe quel document des institutions, sans qu’une justification particulière à l’accès aux documents soit demandée.’’

“Il ressort du règlement no 1049/2001 que le plus grand accès possible aux documents doit être reconnu au public et que les exceptions à son droit d’accès doivent être interprétées strictement’’

‘’…l’article 4,… tout comme le reglement dans son ensemble, n’exige pas que le demandeur de documents démontre que le document demandé lui soit « utile »’’

Finally, the Court annulled the Commission’s decision that rejected the applicant’s request for partial access to the Report by declaring that not all parts of the Report dealt with the examination of non-conformities by the NB and were covered by the exceptions to the right of access to documents (therefore could be potentially disclosed); moreover, the Report is not that type of a document that would be emptied from of its content – if only partially disclosed.

You can find other relevant judgments of the Court of the Justice in our dedicated database.

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