SPAIN’S RECOVERY AND RESILIENCE PLAN: THE GENERAL COURT OF THE EU REFUSES ACCESS TO THE DOCUMENT

Explanation of the Judgment of 15 February 2023 of the General Court of the EU, in case T-77/22 Asesores Comunitarios v European Commission, with the intervention of the Kingdom of Spain.

Introduction

Spain’s Recovery and Resilience Plan is not known.

It was neither published by the Spanish government nor by the institutions in charge of its evaluation and approval (European Commission and EU Council). Three documents should be distinguished:

1. The Plan as such, sent by Spain on 30 April 2021 and which is the subject of our action for annulment which has given rise to this Judgment of the General Court of the EU. IT IS NOT PUBLIC AND ACCESS TO IT HAS JUST BEEN DENIED.
2. The positive assessment of the Plan by the European Commission of 16 June 2021 in the form of a proposal for a Council Implementing Decision, which includes an Annex with the reforms and investment projects, the monitoring and implementation arrangements and the timetable that Spain will have to comply with. It is PUBLIC.
3. The Council Implementing Decision of 13 July 2021. This Decision, after some amendment, adopted the positive assessment of the Commission together with its Annex. It is PUBLIC and is also available on the Council’s websites (Decision and Annex).

Background & summary of the judgment

In the period 2021-2022, Asesores Comunitarios has sought to know the Recovery and Resilience Plan presented by the Spanish Government to the European Commission. To this end, it made a request for documents to the Commission, which was denied twice, after prior consultation with the Spanish government.

Following this, in February 2022, Asesores Comunitarios brought an action for annulment before the General Court of the European Union against the second, and final, decision of refusal.
The purpose of this appeal was to annul this decision, on the grounds that the arguments of the Commission and the Spanish Government were not sufficient to prevent access to such an important document.

However, the General Court held that those arguments were sufficient to refuse access to the Recovery Plan and, therefore, that the Commission’s refusal decision was correct.
The General Court states that the main reason put forward by the Spanish Government and the Commission is that, between April and June 2021, during the assessment of the Plan, amendments and/or modifications would have been made, the disclosure of which would have harmed Spain’s public interest as regards financial and economic policy.

By way of example, the Court states in paragraph 65 that public access to the text of components nr. 23-public labour market policies, and nr.30-pensions, could lead to ‘speculation and interference’ (…) ‘at every stage of the negotiation process concerning the implementation of the Plan’.

Moreover, the General Court states that the publication of the Plan would jeopardise Spain’s negotiating position in future requests for disbursement of Next Generation funds by putting them under external pressure. For all practical purposes, this prevents access to the Recovery Plan from being requested while it is being implemented, i.e. until the end of 2026.

Main conclusions of the judgment

The main conclusions of the Judgment of 15 February are as follows:

1. It breaks with the Court’s long-standing doctrine in favour of transparency and citizens’ access to the institutions’ documents.
2. The Court chooses to defend the political interests of EU governments (Spain in this case) over transparency in a matter of great importance such as the post-COVID recovery plan.
3. The Court confirms the legal limits within which the institution from which access to documents is requested (the Commission in this case) is entitled to carry out a simple verification that the author of the document (the Spanish Government) has acted correctly in opposing disclosure of the document.
4. Finally, while the Spanish Government has published some documents related to the National Recovery and Resilience Plan, both in the preparatory and implementation phase, the document itself, which was submitted to the Commission on 30 April 2021, and access to which Asesores Comunitarios has persistently sought, is not public. Moreover, the Spanish Government, when asked by the Commission whether it could provide access to the document, twice refused to do so, as it subsequently reiterated before the General Court.