Judgment_paragraph 17 · Kingdom of Sweden v Commission of the European Communities and Others (C-64/05 P)

17In this respect, the Court of First Instance held, more precisely, in paragraphs 57 to 62 of the judgment under appeal:57 ... it follows from Article 4(5) of [Regulation No 1049/2001] that the Member States are subject to special treatment. That provision confers on a Member State the power to request the institution not to disclose documents originating from it without its prior agreement. It is appropriate to point out that Article 4(5) of the Regulation reflects Declaration No 35, by which the Conference agreed that the principles and conditions set out in Article 255 EC would allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement. The power conferred on the Member States by Article 4(5) of the Regulation is explained by the fact that it is neither the object nor the effect of that regulation to amend national legislation on access to documents (see the 15th recital in the preamble to the Regulation and Case T-76/02 Messina v Commission [2003] ECR II-3203, paragraphs 40 and 41).58 Article 4(5) of the Regulation places the Member States in a different position from that of other parties and lays down a lex specialis to govern their position. Under that provision, the Member State has the power to request an institution not to disclose a document originating from it without its “prior agreement”. The obligation imposed on the institution to obtain the Member State's prior agreement, which is clearly laid down in Article 4(5) of the Regulation, would risk becoming a dead letter if the Commission were able to decide to disclose that document despite an explicit request not to do so from the Member State concerned. Thus, contrary to what [IFAW] argues, a request made by a Member State under Article 4(5) does constitute an instruction to the institution not to disclose the document in question.59 The Member State is under no obligation to state the reasons for any request made by it under Article 4(5) of the Regulation and, once it has made such a request, it is no longer a matter for the institution to examine whether nondisclosure of the document in question is justified in, for example, the public interest.60 In order to ensure that Article 4(5) of the Regulation is interpreted in a manner consistent with Declaration No 35 and to facilitate access to the document in question by enabling the Member State, where appropriate, to give its consent to disclosure of that document, the institution must consult that Member State where an application for access is made in relation to a document originating from that State. If, after having been consulted, the Member State does not make a request under Article 4(5) of the Regulation, the institution remains obliged, under Article 4(4), to assess whether or not the document should be disclosed.61 The Court holds that, as the Commission rightly argues, where access to a document in respect of which a Member State has made a request under Article 4(5) is not governed by the Regulation, it is governed by the relevant national provisions of the Member State concerned, which were unaffected by the adoption of the Regulation. Accordingly, it is for the national administrative and judicial authorities, in applying national law, to assess whether access to documents originating from a Member State should be granted and whether the right of interested parties to a legal remedy will then be assured by the application of national rules.62 As regards the argument of [IFAW] ... which is based on the wording of Article 9(3) of the Regulation, it should be observed that Article 9 lays down specific rules to govern the treatment of “sensitive” documents originating from, in particular, the institutions, the Member States, third countries or international organisations in the areas covered by Article 4(1)(a) of the Regulation, notably public security, defence and military matters. Article 9 refers, inter alia, to the persons authorised to handle such documents and provides that sensitive documents are to be recorded in the register or released only with the consent of the originator. Given the specific character of the situation governed by that article, it is clear that it is not linked to Article 4(5) of the Regulation and that the wording of Article 9(3) cannot properly be relied on for the purpose of interpreting Article 4(5).’