Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

those notions with the transparency principle is acknowledged by the CJEU. 253 The Court has
stated that "[i]t is (...) a lack of information and debate which is capable of giving rise to doubts in
the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the
legitimacy of the decision-making process as a whole". 254 This link is also established in Regulation
(EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and
Commission documents to all Community institutions and bodies (the Dutch version hereof is the
Wet openbaarheid bestuur). 255 These notions are also implemented in the Treaties. Nowadays, the
Lisbon Treaty provides in Art. 1 TEU that "[t]his Treaty marks a new stage in the process of
creating an ever closer union among the peoples of Europe, in which decisions are taken as openly
as possible (…)". Article 11(2) and (3) TEU require the EU institutions to "maintain an open,
transparent and regular dialogue with representative associations and civil society" and the
Commission to "carry out broad consultations with parties concerned in order to ensure that the
Union's actions are coherent and transparent".
Also, Article 15(1) TFEU states that the Union's institutions, bodies, offices and agencies shall
conduct their work as openly as possible. Moreover, paragraph 2 obliges the EP to meet in public.
The same is required from the Council (Art. 16(8) TEU). According to Article 15(3), which is of
special importance, any citizen of the Union, and any natural or legal person residing or having its
registered office in a Member State, shall have a right of access to documents of the Union's
institutions, bodies, offices and agencies, whatever their medium. Thereby, each institution, body,
office or agency shall ensure that its proceedings are transparent and shall elaborate in its own
Rules of Procedure specific provisions regarding access to its documents, in accordance with the
regulations referred to in the second subparagraph. Regulation 1049/2001 is based on the
predecessor to this article (Art. 255 EC). Furthermore, Article 298(1) and (2) TFEU provides that in
carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have
the support of an open, efficient and independent European administration. The Union's legislature
shall establish provisions to that end. Finally, Article 42 CFR includes the right of access to
documents and grants any citizen of the Union, and any natural or legal person residing or having
its registered office in a Member State, the right of access to documents of the institutions, bodies,
offices and agencies of the Union, whatever their medium.
The European Ombudsman has played a central role in the development of transparency as a
principle of law. He has inquired the public accessibility to documents of several Community
institutions and concluded that there existed maladministration. After his research, important EU
bodies have adopted rules on the access to documents. In this regard, the European Ombudsman
had adopted the European Code of Good Administrative Behaviour. Another EU institution of
central importance in the development of principles in general is the CJEU. Unfortunately, for a
long time the CJEU has not been willing to adopt a general right of transparency or access to
documents. 256 The CJEU did decide on cases on procedural rules and legislative decisions of EU
institutions with regard to the right of access to information, especially with regard to Reg.
1049/2001. Craig & De Búrca refer to the case Hautala in which the Court protects 'the reality of
access'. 257 The decisions of the Court mainly discuss the legal meaning of exceptions listed in
Article 4, the legal standard of review and the meaning of a public interest called upon. In the case
Sison the CJEU adopts a limited judicial review: "the Community Court's review of the legality of
such a decision must therefore be limited to verifying whether the procedural rules and the duty to
state reasons have been complied with, whether the facts have been accurately stated, and
whether there has been a manifest error of assessment or a misuse of powers." 258 Finally, it is
253
Prechal & De Leeuwen (2008), p. 205; Case C-58/94 the Netherlands v Council [1996] ECR I-2169, paragraph 19.
254
C-39/05 P and 52/05P, Kingdom of Sweden and Turco v Council [2008] ECR I-04723, paragraph 59.
255
Buijze & Widdershoven (2010), p. 590.
256
Craig & De Búrca (2011), p. 544.
257
Craig & De Búrca (2011), pp. 544-545; Case C-353/99 P Hautala v Council [2001] ECR I-9565, paragraph 31.
258
Case C-266/05 P Jose Maria Sison v Council [2007] ECR I-1233, paragraph 34.
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