Volume 49 (2012) / Issue 2
Despite the fact that the European Union has had specific rules on access to official documents for more than ten years now, their boundaries are still unclear as to why and when the institutions may refuse access. In many respects the lingering doubts have been elicited by the ECJ itself, as the Court often hesitates whether to pursue a restrictive interpretation of the exceptions or whether to protect discretionary powers of the institutions.
This contribution describes how the most recent case law of the Luxembourg courts meanders between the two options. Furthermore, it critically analyses both the origins and the results of this process, by concentrating on paradoxes stemming from two radically different judicial approaches applied to the same area of law.
Inconsistencies as to review standards in respect of access cases are all the more puzzling considering that decisions of the ECJ ignore - and often contradict - the fundamental freedom of expression, as protected by the European Convention on Human Rights. After analysing the issue, the author proposes modifications to the judicial approach of the ECJ. They are aimed at enhancing congruity with the Strasbourg jurisprudence and at improving the balance between diverging interests involved.
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