Dear Legal Service,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

The written observations of (a) Ireland and (b) the European Commission in case C-300/21

My order of preference in terms of language is (i) English , (ii) French; or (iii) language of the case

Yours faithfully,

Fred Logue
8/10 Coke Lane
Smithfield
Dublin 7
Ireland

Dear Legal Service,

I confirm receipt

Yours faithfully,

Fred Logue

Dear Legal Service,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Written observations of Ireland and Commission in C-300/21' which was refused on 8 June 2023

The written observations of Ireland and the Commission were refused for seemingly identical reasons to do with the protection of court proceedings, namely that there were 9 pending cases before the Court of Justice where the Commission and Ireland also lodged written observations and which also concern the interpretation of provisions relating to damages for breach of the GDPR. It is said that releasing the written observations in C-300/21 may reveal Ireland's and the Commission's detailed reasoning in these pending cases.

First, the decision states that Ireland has "refused" access to its written observations. on the grounds of Article 4(2), second indent - protection of court proceedings. However the Member States are merely consulted on requests for access to their documents, it is for the institution to decide on whether a document should be released or not. (see Sweden v Commission, C-64/05, para 58). Therefore the decision erred by, in effect, granting Ireland a veto over release of its written observations.

Second, in terms of the refusal of written observations in a closed case to protect pending proceedings, I accept that the Court in Sweden v API (joined cases C-514/07 P, C-52807 P and C-532/07 P) didn't rule out the possibility that this could be a basis for a refusal, however it set strict conditions on this as is apparent from paragraphs 133 to 135 of the Grand Chamber judgment.

The Court held that in this scenario the risk depends on a number of factors including the degree of similarity between the arguments put forward in the two cases and whether all of the arguments are repeated, if not partial disclosure can be granted. (para 133)

The Court stressed that there was no presumption that pending proceedings would be undermined based on a mere link between the proceedings (para 135)

The Court concluded that only a specific examination of the documents to which access is requested, undertaken in accordance with the criteria referred to in paragraph 72 of the judgment, can enable the Commission to establish whether their disclosure may be refused on the basis of the second indent of Article 4(2) of Regulation No 1049/2001. (para 134).

In this case the Commission has not justified its refusal as required by the case law. It has merely flagged a link between the subject matter of the cases and has not carried out a specific examination of the documents. The Court has already ruled that this approach cannot justify refusal. Furthermore the risk identified by the Commission is hypothetical, the Commission simply states that release "may" reveal the arguments in the pending cases.

A refusal can only be made where the institution establishes that release of the document could specifically and actually undermine the public interest protected by the exception. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical. (ClientEarth v Commission C-612/18, para 32). The Commission has not therefore demonstrated that the interest protected by Article 4(2) second indent would be undermined.

It is highly improbable that Ireland and the Commission would use the same arguments in 9 separate cases with a wide diversity of issues which tends to indicate that the decision was merely based on the fact that these 9 cases concern the same provisions of the GDPR as C-300/21 without examining whether the same arguments were actually made.

In terms of overriding public interest, the issue of damages for GDPR breaches is a topic of significant legal uncertainty in the EU (as evidenced by at least 9 pending preliminary references). In particular in Ireland, our legal system does not have a concept of compensation for non-material damage which was introduced for the first time in the Irish legal system via GDPR. Therefore there is a great interest in Ireland as to how the Irish state and the Commission approach this from a legal point of view, for example whether they are pushing for interpretations making it more difficult to get compensation, easy to get compensation for per-se breaches or a more balanced approach.

In terms of the specific documents, it is difficult for the public and for lawyers to follow preliminary reference procedures particularly when, as here, there was no hearing. At the same time there should be open justice and in principle the arguments of Ireland and the Commission are effectively in the public domain since they were presented to the Court and via the AG opinion and the judgment. If there had been a hearing, the public could have attended court and heard and noted these arguments.

For lawyers, having access to legal pleadings in a novel area of law drafted by professional public sector lawyers helps us to better advise our clients and to understand the law. This is particularly the case here where the legal concepts are novel to the Irish system and there is no precedent to follow. Therefore access to the written observations of Ireland and the Commission in this case will improve access to justice and reduce legal costs.

A full history of my request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/writt...

Yours faithfully,

Fred Logue
8/10 Coke Lane
Smithfield
Dublin 7
Ireland

Dear [email address],

I received your response, thank you.

Yours sincerely,

Fred Logue