Bavarian Lager: Irresistible v Immovable

October 15, 2009

Freedom of information principles and the safeguards for personal data clash in a case before the European Court of Justice. Advocate General Eleanor Sharpston QC has now published her opinion in Commission of the European Communities v The Bavarian Lager Co. Ltd and has come down in favour of the freedom of information principles. The Opinion is available at

The case concerns the right of access to minutes of a meting held in 1996 when the Bavarian Lager Co was concerned about restrictions on access to the market in UK pubs. A meeting was held with representatives of the Commission, the UK administrative authorities and certain representatives of the Confédération des Brasseurs du Marché Commun. There was file held by the Commission with input from interested parties and there were access issues regarding the documents in that file too.  

The Commission claims that the minutes and related documents are protected as personal data because, inter alia, they identify individuals (some of whom do not want to be identified). The Commission cites the Personal Data Regulation. The alternative view is that the Access to Documents Regulation trumps any such claim and that the need for administrative transparency far outweighs the need to shelter the attendees at such a meeting. The latter view has the backing of the European Data Protection Supervisor. 

The Advocate General compared the two Regulations with the irresistible force and the immovable object but identified the solution as stemming from a precise definition of documents containing personal data. The documents in question did indeed contain personal data, she said, but it was an incidental component rather than their raison d’etre. In such a case, there was no real clash and the access force was superior to the personal data object in the specific context. 

Whether this dislodged object will produce an avalanche of openness remains to be seen. The Opinion is not binding on the full court.