Access to Documents, Accountability and the Rule of Law—Do Private Watchdogs Matter?

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Abstract

: The ECJ has not so far developed a single, consistent approach to cases in which the right to access official documents is exercised by individuals and organisations pursuing their individual cause (private watchdogs). While in some cases the Luxembourg jurisprudence has followed a restrictive approach, supporting interests and secondary law provisions conflicting with transparency, in other it has unconditionally endorsed a supreme character of the access right. This contribution confronts both of the approaches whenever the access right exercised by private watchdogs has clashed with confidentiality stemming from secondary law provisions: from state aid, staff rules, data protection, antitrust and beyond. The article argues that most often the judicial standard restricting the access right interferes with a feedback relationship between transparency, accountability and the rule of law. This relationship, when properly construed and appraised, may form a basis for an arguably more uniform and stable judicial standard.

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