On 29 June 2010, the European Court of Justice handed down an important judgment on how provisions within EU law which permit access to documents held by EU institutions are to be applied where the documents contain third party personal data – European Commission & United Kingdom v Bavarian Lager (Case C-28/08 P). The case involved an application for disclosure of a document held by the European Commission which recorded discussions on the application of certain beer import restrictions within the UK. A number of individuals were identified by name in the document. The application for disclosure was made by Bavarian Lager under EU Regulation 1049/2001 (the Access Regulation). The Access Regulation is designed to facilitate public access to documents held by EU institutions with a view to increasing their transparency and accountability. Importantly, like FOIA, the Access Regulation is, on its face, motive-blind (i.e. it does not require the applicant to establish a legitimate reason for accessing the information). The Commission provided the requested document, save that it redacted the names of certain individuals identified in the document. The key issue which arose in the case was whether, in deciding whether to release the names of the individuals in question, the Commission had been entitled to take into account whether Bavarian Lager had established that it had legitimate interests in receiving this particular data.

The Court of First Instance (now ‘the General Court’) held that: (a) particularly having regard to the motive blind nature of the Access Regulation, the Commission had erred in taking into account Bavarian Lager’s interests in receiving the information and (b) the names should be disclosed. On appeal by the Commission, the ECJ overturned the CFI’s judgment. In summary, the ECJ reached the following conclusions on the appeal:

(1)   the CFI had erred because it had failed to have due regard to the way in which the Access Regulation effectively deferred to provisions contained in other EU legislation, particular Regulation 45/2001 which is specifically concerned with protecting individuals with regard to the processing of their personal data by EU institutions (“the DP Regulation”);


(2)   the DP Regulation itself required consideration of the question of whether the applicant had a legitimate interest in receiving the particular personal data;


(3)   accordingly, the Commission had not erred when it decided that Bavarian Lager had not established a legitimate interest in receiving the personal data contained in the documents;


(4)   the data had been lawfully withheld by the Commission.

11KBW’s Jason Coppel appeared on behalf of the United Kingdom.