When the Court of Justice of the European Union delivered its Grand Chamber judgment in ClientEarth v Commission, Case C-57/16 P, on 4 September 2018, it settled a question with consequences for anyone watching EU law in the making: can the Commission keep its impact assessments secret while it is still deciding whether to propose legislation? The answer was no — at least not as a matter of blanket policy.
The documents at issue
ClientEarth, an environmental law organisation, had asked the Commission in 2014 for impact-assessment documents connected to two possible initiatives in environmental policy: one on access to justice in environmental matters, the other on inspections and surveillance in the environmental field. Impact assessments are the analytical studies the Commission prepares before deciding whether and how to act, weighing the options and their likely effects; they are reviewed internally by a dedicated scrutiny board whose opinions were also requested.
The Commission refused, relying on the first subparagraph of Article 4(3) of Regulation 1049/2001, which protects an institution's decision-making process while a matter is still open. Its position was categorical: documents produced in the course of an ongoing impact assessment enjoyed, as a class, a general presumption of non-disclosure, because early release would expose the Commission to outside pressure and constrain its freedom to decide what to propose. In 2015 the General Court accepted that reasoning and recognised such a presumption.
The Grand Chamber's answer
The Court of Justice set the General Court's judgment aside and annulled the Commission's refusals. By the time it ruled, the Commission had in fact published the requested documents, and it argued the case had become pointless; the Court disagreed, holding that ClientEarth retained an interest in a ruling because the contested practice was liable to be repeated.
On the substance, the Court placed impact assessments firmly within the legislative process. Although the Commission had not yet made a proposal, these documents form an important part of the chain that leads to legislation, and the principles of openness developed for legislative documents — a line of reasoning established in the long-running battle over the EU's access rules and in the Turco case law before it — apply to them. Citizens' ability to scrutinise the information underlying possible legislative choices is a condition for exercising democratic rights, not a threat to them.
The Court therefore rejected any general presumption of confidentiality for impact-assessment documents. A refusal under Article 4(3) requires the institution to show, specifically and with reference to the actual documents, that disclosure would seriously undermine its decision-making, and the risk must be reasonably foreseeable rather than hypothetical. The Commission's wish to work shielded from external pressure did not meet that standard. The Court also noted the environmental context of the requests, an area in which EU law — implementing the Aarhus Convention through Regulation 1367/2006 — calls for exceptions to be construed all the more strictly.
What the judgment changed
ClientEarth extended transparency upstream, into the preparatory stage where policy is genuinely shaped and lobbying is most intense. It confirmed that the Commission's right of initiative is not a zone of secrecy, and it narrowed the space for category-based refusals under Article 4(3). For requesters, it means impact assessments and related scrutiny-board opinions can be sought while an initiative is still pending, with any refusal needing document-specific justification — a route described in practical terms in the guide on how to use European freedom-of-information rules. The judgment itself can be located through the Court's website at curia.europa.eu.
Frequently asked questions
What is an impact assessment?
A study the European Commission prepares when considering a new initiative, analysing the problem, the options and their expected economic, social and environmental effects. It accompanies the internal decision on whether to propose legislation.
Did the Court abolish the decision-making exception?
No. Article 4(3) of Regulation 1049/2001 still exists. The Court ruled only that it cannot be applied through a blanket presumption to impact assessments; harm must be shown for the specific documents requested.
Why did the case continue after the documents were published?
Because the Commission maintained its legal position, the Court found the alleged unlawfulness liable to recur and ruled on the merits despite the interim publication.