"The public's right to this information is a fundamental principle of European law. That the Commission should choose to deny our rights on such a critical issue as the science underpinning our climate policies is astounding," said Tim Grabiel, Staff Attorney at ClientEarth, the public-interest legal organisation representing the coalition. "It is regrettable that the Commission's consistent obstructionism compels us to go to court."
The efforts to gain access to this information began on 15 October 2009 – more than 144 days ago. Following intense internal deliberations and multiple extensions, the Commission refused to turn over the documents by the statutory deadline, 9 February 2010. Instead, it informed the coalition of their right to sue. In response, the coalition has taken the rare step of taking the issue to the General Court of the European Union.
"The papers released so far give the strong impression that the Commission is preparing to present the studies' findings in a way that supports previously taken decisions, rather than assessing the real implications of these decisions and correcting them," said Pieter de Pous, Senior Policy Officer at the EEB.
At issue is the future regulation of biofuels in the European Union. Member States are required to use renewable sources to meet 10% of their transport needs by 2020, which will be met in large part through the increased use of biofuels. A well-known consequence of biofuels production, however, is the conversion of forests and other natural areas into cropland to replace those croplands lost to biofuels production — a phenomenon called indirect land-use change (ILUC) that releases significant greenhouse-gas emissions. The requested documents sought in the ClientEarth v. Commission case reveal the science on those impacts.
Nuša Urbančič, Transport & Environment, says: "Current EU biofuels policy guarantees that Europe will use lots of biofuels, but it doesn't guarantee reductions in greenhouse gas emissions; in fact it seems likely it will make things worse. The first step to fixing this broken policy must be full transparency about what the true impacts are. That's why this legal action is so important."
The Commission is currently withholding around 140 documents, according to its own figures.
The coalition's application will be reviewed by the Registrar of the General Court of the European Union, and later served upon the Commission, after which it will have two months to respond. A hearing date has yet to be set.
"We continue to hope that the Commission will finally opt for full transparency," said Ariel Brunner, Head of EU Policy at BirdLife International. "Sound climate policies require an open, inclusive and science-driven debate."
James Thornton, lawyer and CEO of ClientEarth, says: "The Commission might not be seeking to hide the truth, but the result of its stance is that crucial information is being withheld until it's no longer relevant. Its own access laws and work to mitigate climate change are being compromised by its inaction. The Commission's delaying tactics are totally against the spirit of the law."
- The full text of the legal filing can be downloaded here.
- The General Court of the European Union was formerly known at the Court of First Instance.
- Applicants that have been refused access to documents have standing to bring an action under Regulation (EC) No 1049/2001, also known as the Public Access Regulation, and Article 263 of the Treaty on the Functioning of the European Union. In fact, when refusing a request, the Commission informs the applicant of their right to initiate court proceedings.
- There is precedent for the General Court to grant activists standing. For example, a recent case involves the WWF who brought an action against the Council to get certain documents. The court rejected its pleas in law and dismissed the case, but that was on the merits of the claims and not on standing. See Case T-264/04, WWF European Policy Programme v. Council of the European Union (2007), paragraph 36.
- However, ClientEarth v. Commission challenges not only the refusal to release the documents, but seeks to address the underlying pattern of the Commission in engaging in what the European Ombudsman has called "maladministration" – that is, delaying the disclosure of documents needlessly without adequate justification until those documents are no longer relevant or the decision has been made. It does this by asking the court to order the release of all requested documents without redaction or delay for failure to make valid claims during the administrative process, without consideration of any reasons offered by the Commission afterward. That is what the law requires, and will ensure good faith participation in the administrative process going forward.
- The spirit of the law is that the information should be forthcoming. That is what the process in the regulation is designed to do. Our climate strategies are matters of public policy, and the public should be invited into the policy-making process, not excluded from it by having critical information indefinitely hidden from scrutiny.