Procedure of confirmatory application

Got a refusal to access after your first application? According to Regulation 1049/01 you can file a confirmatory application (in many other access laws this would be called appeal). Please note, that at this stage it can be wise to consult a media lawyer or other expert in the field.

In case you get a refusal to your first application according to 1049/01, you can submit a confirmatory application according to article 8 of the regulation.
After you have received the refusal, you have 15 working days to file your confirmatory request (article 7 (2)).
The institution has 15 working days to respond to your confirmatory application (article 8 (1)).
If the institution does not answer within 15 working days, you must consider your application is turned down (article 8 (3)), unless the time-limit has been prolonged due to a large request (article 8 (2)).

Confirmatory application - step by step

Writing the confimatory application demands some consideration. Here are some tips.

Writing the confirmatory application is the last option before turning to complaints. At this point it can be very wise to include a medialawyer or another expert in the field for advise.

If you got a written refusal by the institution, where you applied, read it carefully.
At this stage it can be a good idea to have an informal talk with either the department or the central access application-office of the institution, where you applied. Applicant and officials both play according to the same regulation, and often a talk will give you an idea, where the views on it vary. Ask for an appointment for an informal phone-conversation about your case. As a journalist using this comparably young law, you also have the role of educator, explaining the law to officials, who may not be so familiar with it yet. Stay calm, polite and keep the overview.

When you turn to writing the confirmatory application, do study articles 4 and 9 of the regulation, they state the exceptions from access to documents. Notice, that the institutions are obliged to weigh the public interest against the exceptions. This has been stated by caselaw, and it is explicitely mentioned in article 4 (2) and 4 (3).
As many of the exceptions have a rather broad scope, it is important to also study the caselaw, that exists already for some of the exceptions, and take that into consideration. Not that it can not be challenged, but it may mean an extra obstacle.

The confirmatory application is either sent to the same mail address as your initial request. Often there will be one or several mail-addresses in the refusal, and they should have a copy of your confirmatory request. Remember to make a note in your agenda, here too the institution has 15 working (xls, 14 KB) days to deal with the request, unless it's a particularly large request (article 8 (1) and (2)).
Now is the very latest time to consider, whether this request is worth taking to the European Court of Justice, in case of another refusal. Court cases are costly, and unless it is possible to go all the way through to win the case at the second level, the European Court of Justice, it's not worthwile running a case. An alternative can be to ask the opinion of the European Ombudsman. His word has weight but is not legally binding.

Brigitte Alfter