the matter at hand

RTL Nederland B.V. and RTL Nieuws B.V. (hereinafter together referred to as: “RTL”) requested a set of information relating to the downing of flight MH17 from Amsterdam to Kuala Lumpur pursuant to the Law on Government Information (Public Access). The Dutch Minister for Infrastructure and Water Management refused the request in so far as it concerned the reports stored in the European Coordination Centre for Aircraft Incident Reporting Systems (“ECCAIRS reports”). The refusal was based on the existence of special rules on the prohibition of disclosure of this particular information Regulation 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation (“Regulation 376/2014”).

RTL brought an action before the Dutch district court, which dismissed the action as unfounded. RTL appealed before the Raad van State (Council of State, Netherlands), the referring court. In their appeal, RTL submitted that Regulation 376/2014 cannot be interpreted as establishing rules on confidentiality or on the prohibition of disclosure that deprive them, in a complete and absolute manner, of the possibility they have under the Law on Government Information to obtain information relating to the downing of flight MH17.

The referring court decided to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling. By its question, the referring court seeks to ascertain whether Article 15 of Regulation 376/2014, read in light of the freedom of expression and information enshrined in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] of Fundamental Rights of the European Union (the “CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]”), must be interpreted as meaning that information held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety is subject to a confidentiality regime, which regime has the consequence that neither the public nor the media

has the right to have access to that information. More specifically, the referring court asks whether the absolute prohibition on disclosing such information laid down in national law is compatible with the right to freedom of expression and information laid down in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] and Article 10 ECHR.

the judgment of the ecj

The ECJ first notes that it must be recalled that, when interpreting a provision of EU law, not only the wording of the provision, but also the context in which it occurs and the objectives pursued by the legislation should be taken into account. In that regard, the ECJ considers that “it is apparent from the wording of Article 15 of Regulation No 376/2014, from the context in which it occurs and from the objectives pursued by the legislation of which it forms part that that provision must be interpreted as meaning that all information that is held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety, as defined by Regulation No 376/2014, is subject to a confidentiality regime the consequence of which is that the public does not have the right to have access to that information in any form” (paragraph 61). The obligation of confidentiality is a central and necessary element of the system of supervision and control established by it to improve aviation safety.

This confidentiality regime is liable to impair the right to freedom of expression and information, as enshrined in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], as it precludes persons from freely accessing information. More specifically, it precludes “media undertakings from having access to that information for the purpose of journalism, in the context of preparatory research, investigative and information-gathering activities which are inherent to the freedom of the media and to the ultimate objective of the journalistic activity, which is to communicate information to the public and to contribute to public debate” (paragraph 73).

The ECJ considers, however, that Article 15 of Regulation 376/2014 does not undermine the essence of the right enshrined in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] as it “applies only to information that relates to accidents, serious incidents or other occurrences which may represent a significant risk to aviation safety and that is collected or held by the competent public authorities pursuant to that regulation. It does not therefore preclude the public and media undertakings from seeking information in this connection from other sources or by other means” (paragraph 74). Further, the objective of improving aviation safety in Europe constitutes an objective of general interest recognized by the Union (see in that regard Fries (C‑190/16) and Skeyes (C‑353/20)).  

According to the ECJ, the obligation of confidentiality must be regarded as being proportionate to the objective that it pursues. The ECJ notes that “Irrespective of the fact that that obligation does not preclude the public and media undertakings from seeking information from other sources or by other means, […] it does not preclude all possibility for the information in question to be disclosed at the initiative and under the control of those authorities or courts. It is thus apparent that, in adopting Regulation No 376/2014, the EU legislature sought to strike, and did indeed strike, a fair balance between the objectives pursued by that regulation, on the one hand, and the various public and private rights and interests at stake, on the other” (paragraph 84).

In light of the foregoing considerations, the ECJ concludes that the answer to the questions referred is that Article 15 of Regulation 376/2014, read in the light of the right to freedom of expression and information enshrined in Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], must be interpreted as meaning that information held by the national competent authorities regarding an ‘occurrence’ relating to aviation safety is subject to a confidentiality regime the consequence of which is that neither the public nor even a media undertaking has the right to have access to that information in any form.