Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 15 June 2023(1)

Case C‑451/22

RTL Nederland BV,

RTL Nieuws BV

joined party:

Minister van Infrastructuur en Waterstaat

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling – Civil aviation – Regulation (EU) No 376/2014 – Article 15(1) – Appropriate confidentiality of details of occurrences – Charter of Fundamental Rights of the European Union – Articles 11 and 42 – European Convention on Human Rights – Article 10 – Freedom to receive information – Limitation – Public safety)

I.      Introduction

1.        On 17 July 2014, 298 people lost their lives when Malaysia Airlines flight MH17, a scheduled passenger flight from Amsterdam (Netherlands) to Kuala Lumpur (Malaysia), crashed near Hrabove, a village in eastern Ukraine. (2) RTL Nederland BV and RTL Nieuws BV (‘RTL’), two Dutch media undertakings, requested information from the Netherlands Government to find out what it knew about the safety of Ukrainian airspace prior to the disaster. The minister van Infrastructuur en Waterstaat (Minister for Infrastructure and Water Management, ‘the Minister’) decided that national law and Regulation (EU) No 376/2014 (3) prohibited disclosure of that information. The present request for a preliminary ruling arises from RTL’s challenge to that decision.

II.    Legal framework

A.      European Union law

2.        Article 15 of Regulation No 376/2014, headed ‘Confidentiality and appropriate use of information’, states:

‘1.      Member States and organisations, in accordance with their national law, and the [European Aviation Safety Agency (“the Agency”)] shall take the necessary measures to ensure the appropriate confidentiality of the details of occurrences received by them pursuant to Articles 4, 5 and 10.

Each Member State, each organisation established in a Member State, or the Agency shall process personal data only to the extent necessary for the purposes of this Regulation and without prejudice to national legal acts implementing [Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)].

2.      Without prejudice to the provisions relating to the protection of safety information in Articles 12, 14 and 15 of [Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC (OJ 2010 L 295, p. 35)], information derived from occurrence reports shall be used only for the purpose for which it has been collected.

Member States, the Agency and organisations shall not make available or use the information on occurrences:

(a)      in order to attribute blame or liability; or

(b)      for any purpose other than the maintenance or improvement of aviation safety.

3.      The Commission, the Agency and the competent authorities of the Member States, when discharging their obligations under Article 14 in relation to the information contained in the European Central Repository, shall:

(a)      ensure the confidentiality of the information; and

(b)      limit the use of the information to what is strictly necessary in order to discharge their safety-related obligations without attributing blame or liability; in this respect, the information shall be used in particular for risk management and for analysis of safety trends which may lead to safety recommendations or actions, addressing actual or potential safety deficiencies.

…’

B.      Netherlands law

3.        Article 2.1 of the Wet openbaarheid van bestuur (Law on Government Information (Public Access)) provides that:

‘In carrying out its duties, an administrative body shall, without prejudice to any other provisions provided for by law, provide information in accordance with this Law and follow in that regard the general interest in open access to information.’

4.        By Article 3 of the Law on Government Information (Public Access):

‘1.      Anyone may address a request for information contained in documents relating to an administrative matter to an administrative body or to an institution, department or company operating under the authority of an administrative body.

2.      In the request, the requestor shall specify the administrative matter, or the document relating thereto, about which the requestor wishes to receive information.

3.      The requestor need not declare an interest when making the request.

4.      If the request is formulated in too general a manner, the administrative body shall as promptly as possible ask the requestor to clarify the request and shall assist the requestor in doing so.

5.      A request for information shall be granted subject to the provisions of Articles 10 and 11.’

5.        Article 1.1 of the Wet luchtvaart (Law on Aviation) provides that:

‘In this Law and the provisions based on it, the following definitions shall apply:

…

occurrence: an operational interruption, defect, fault or other irregularity which affects or may affect flight safety, without amounting to an accident or serious incident, as referred to in Article 3(a) and (k) of Directive 94/56/EC of the Council of the European Communities of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents (OJ 1994 L 319, p. 14);

…’

6.        The first paragraph of Article 7.1 of the Law on Aviation requires occurrences to be notified to the Minister for Infrastructure and the Environment.

7.        Pursuant to Article 7.2 of the Law on Aviation:

‘1.      Data obtained from a notification referred to in Article 7.1(1) or received from a Member State of the European Union in response to a similar notification in that Member State are not public.

2.      Any authority with regulatory competence in the field of civil aviation safety or with investigative competence for accidents and incidents which occur within the European Community shall have access to the data referred to in the first paragraph.

3.      When registering the notification, the names and addresses of individual persons shall not be recorded.’

III. The facts of the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

8.        On 10 January 2018, RTL requested documents relating to the flight MH17 disaster from the Netherlands Government pursuant to the Law on Government Information (Public Access). The requested documents included ‘all ECCAIRS reports relating to Ukraine in 2014’. (4)

9.        The Minister identified two relevant reports but decided that he could not disclose them because: (i) RTL is not one of the interested parties to which Article 10(2) of Regulation No 376/2014 refers, namely persons and organisations active in the aviation sector listed in Annex II to that regulation; and (ii) Article 7.2 of the Law on Aviation prohibits their disclosure. (5)

10.      RTL appealed against the Minister’s decision. By letter of 31 December 2018, it informed the Rechtbank Midden-Nederland (District Court, Central Netherlands, Netherlands) that, in the interest of procedural efficiency, it limited its appeal to all documents relating to reports in respect of the safety situation in the airspace above Ukraine before 17 July 2014, including reports in ECCAIRS. (6)

11.      The Rechtbank (District Court) dismissed RTL’s appeal. (7) Article 7.2 of the Law on Aviation, which is intended to reflect the confidentiality obligation contained in Article 15(1) of Regulation No 376/2014, prevents the disclosure of ECCAIRS reports. RTL cannot rely on Article 10 of Regulation No 376/2014, as that provision determines exhaustively how and to whom information can be provided. RTL acknowledged that it is not an interested party for the purposes of that provision. Nor can it rely on Article 13(12) of Regulation No 376/2014, as that provision does not provide for a procedure for the disclosure of anonymised information upon request. In addition, RTL cannot rely on the right to receive information under Article 10 of the European Convention on Human Rights, signed in Rome on 4 November 1950 (‘the ECHR’), as the said limitations are prescribed by law and there are no exceptional circumstances within the meaning of the relevant case-law to indicate that those limitations may be unlawful. To the extent that RTL’s request could be interpreted as including any documents relating to the ECCAIRS reports, the same considerations militated against their disclosure.

12.      Although the Minister had provided the Rechtbank (District Court) with the two reports that he had identified as relevant, that court decided that it would be inappropriate to read them. It also considered it inappropriate to grant RTL’s request for a substantive declaration on the question whether the Netherlands Government had reacted sufficiently quickly to any warnings about the safety of Ukrainian airspace.

13.      RTL appealed against the first instance decision to the Raad van State (Council of State, Netherlands). That court decided to stay the proceedings and to refer the following questions to the Court of Justice:

‘(1)      What should be understood by details of “occurrences” and “appropriate confidentiality” as referred to in Article 15(1) of [Regulation No 376/2014] and in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter of Fundamental Rights of the European Union [(“the Charter”)] and Article 10 [ECHR]?

(2)      Is Article 15(1) of [Regulation No 376/2014], in the light of the right to freedom of expression and information enshrined in Article 11 of the [Charter] and Article 10 [ECHR], to be interpreted as being compatible with a national rule, such as that at issue in the main proceedings, by virtue of which no information received from reported occurrences may be disclosed?

(3)      If the answer to question 2 is in the negative: is the competent national authority permitted to apply a general national rule on disclosure by virtue of which information is not disclosed if disclosure would be outweighed by the interests concerned with, for example, relations with other States and international organisations, with inspection, control and monitoring by administrative authorities, with respect for privacy and with preventing natural and legal persons from being disproportionately advantaged and disadvantaged?

(4)      When the general national rule on disclosure is applied, does it make any difference whether the information in question is contained in the national database or is information from or about reports contained in other documents, for example, policy documents?’

14.      The Netherlands Government, the Council of the European Union and the European Commission submitted written observations. At the hearing on 30 March 2023, those parties presented oral argument and replied to the Court’s written and oral questions.

IV.    Analysis

A.      The repeal of Directive 2003/42/EC and the enactment of Regulation No 376/2014

15.      In 2011, the Commission published a communication on setting up a European aviation safety management system. (8) In view of an anticipated increase in the number of flights, it observed that it would be challenging to maintain the European Union’s low accident rate without taking specific actions, including the identification of safety hazards, the sharing of safety information and the proactive investigation of incidents.

16.      Notwithstanding the adoption of Directive 2003/42/EC, (9) the Commission identified a significant weakness in the reporting of safety-related events, including those caused by incomplete data and low quality information. In order to address that concern, it was necessary to establish a culture of open reporting and to create an environment where individuals felt able to report safety events without fear of reprisal, described as a ‘just culture’. (10)

17.      In the course of the Commission’s review of Directive 2003/42, Member States indicated that they considered effective occurrence reporting to be crucial in order to establish an evidence-based safety system. They regretted the lack of confidentiality of reported information and the low level of protection from the judicial authorities. They proposed that the provisions on the protection of information be reviewed so as to create a no-blame environment where individuals were encouraged to report safety-related deficiencies and mistakes. (11)

18.      In its opinion on the proposal for Regulation No 376/2014 (12) the European Economic and Social Committee agreed that the occurrence reporting system could function effectively only if it was implemented in the context of a ‘just culture’, shielding employees from any proceedings brought against them by their employer and protecting them from any prejudicial consequences or legal action as a result of involuntary errors. In order to avoid the spread of groundless fears and negative reactions among the public, it was appropriate that Member States publish information in aggregate form and in annual reports on overall aviation safety.

19.      Those considerations, among others, led to the repeal of Directive 2003/42. It is clear that all concerned parties considered the confidentiality of information crucial for the effective operation of the aviation safety management system. Without prejudice to my assessment of the relevant provisions of Regulation No 376/2014, I agree with that position. While there are many contexts in which transparency is in the public interest because it increases legitimacy and effectiveness and ensures that persons and organisations can be held to account for their actions, there are other situations where that cannot be the primary concern. Occurrence reporting in civil aviation clearly falls within that second category.

20.      Regulation No 376/2014 lays down rules to ensure that safety information relating to civil aviation is reported, collected, stored, protected, shared among aviation experts and analysed, and that, where appropriate, safety action is taken in a timely manner based on an analysis of that information. (13) The regulation covers all occurrences involving an aircraft registered in a Member State or operated by an organisation established in a Member State, even if the occurrence happened outside the territory of that Member State. (14)

21.      Regulation No 376/2014 requires the mandatory reporting of occurrences that represent a significant risk to aviation safety and the voluntary reporting of occurrences not captured by the mandatory reporting requirement. (15) The competent authorities of the Member States have access to their respective national database that contains those reports. (16) The Commission manages the ECR, in which all occurrence reports collected in the European Union are stored, to which the competent authorities of the Member States, the Agency (17) and the Commission have access. (18) Reported information must be followed up at national level by analysing it in order to identify safety hazards, to determine appropriate steps to improve aviation safety where relevant, and to implement and to monitor the effectiveness of such steps. The Agency must be informed of those developments. There is also a follow-up system at EU level. (19)

22.      Regulation No 376/2014 contains a number of provisions that relate to confidentiality and the appropriate use of information, the protection of information sources, access to documents and the protection of personal data. Information is generally anonymised as much as possible and is available only to persons whose job it is to maintain and improve civil aviation safety. I refer to those provisions in greater detail below.

B.      The first question

1.      Interpretation of Article 15(1) of Regulation No 376/2014

23.      The referring court is unsure about what is meant by ‘appropriate confidentiality of the details of occurrences’ in the first subparagraph of Article 15(1) of Regulation No 376/2014. (20) It considers that the precise meaning of that phrase is important in order to determine whether the Minister was right not to disclose the two reports that he had identified as relevant to RTL’s request for ‘reports in respect of the safety situation in the airspace above Ukraine before 17 July 2014, including reports in ECCAIRS’.

24.      Before examining the text of Article 15(1) of Regulation No 376/2014, it is useful to summarise the information flows that relate to occurrences. (21)

25.      Employees, contractors and service providers of the organisations defined in Article 2(8) of Regulation No 376/2014 usually report occurrences to the organisation that employs them or uses their services. Alternatively, they may report occurrences directly to a national competent authority or to the Agency. The occurrence reports, drawn up on the basis of details of occurrences collected, are stored in databases. (22) The reports are transferred to the database of the Member State’s national competent authority. (23) The safety investigation authorities and civil aviation authorities of a Member State have access to their respective national databases in order to analyse reports of occurrences, draw conclusions from them and implement actions to promote aviation safety. (24)

26.      Member States and the Agency are to make all safety-related information stored in their respective reporting databases, including occurrence reports, available to the competent authorities of all the other Member States, the Agency and the Commission, via secure full online access to the ECR. (25) The reports are analysed and any follow-up action implemented at EU level. (26)

27.      Turning to the analysis of Article 15(1) of Regulation No 376/2014, according to settled case-law, provisions of EU law that do not expressly refer to the law of the Member States for the purpose of determining their meaning and scope are normally given an autonomous and uniform interpretation. That interpretation must take into account the text and context of those provisions and the objective that that legislation pursues. (27)

28.      The first subparagraph of Article 15(1) of Regulation No 376/2014 stipulates that Member States, organisations and the Agency must ensure the appropriate confidentiality of the details of occurrences received by them pursuant to Articles 4, 5 and 10 thereof.

29.      Article 2(7) of Regulation No 376/2014 defines ‘occurrence’ as ‘any safety-related event which endangers or which, if not corrected or addressed, could endanger an aircraft, its occupants or any other person and includes in particular an accident or serious incident’.

30.      Regulation No 376/2014 does not define ‘details’. Dictionary definitions of that term include ‘a piece of information or fact about something’, ‘a subordinate part’ or ‘small elements that constitute a whole’. The word ‘renseignements’, used in the French-language version, is often rendered in the English language as ‘details’ or ‘information’. The Spanish-, Czech-, German- and Portuguese-language versions similarly use words meaning ‘information’, ‘data’ or ‘details’. It is interesting that the Dutch-language version uses the word ‘bijzonderheden’, which conveys the idea of ‘particularities’, ‘specificities’ or ‘distinctive features’, as well as of ‘details’ or ‘information’. That resembles the text of the Italian-language version, which refers to ‘informazioni dettagliate’, ‘detailed information’. This comparative textual analysis discloses that ‘details of occurrences’ means all the information on occurrences to which the relevant organisations, the Member States or the Agency have access under Article 4, 5 or 10 of Regulation No 376/2014.

31.      The word ‘appropriate’ in the expression ‘appropriate confidentiality’ in Article 15(1) of Regulation No 376/2014 is undefined. Its ordinary meaning – ‘suitable or proper in the circumstances’ (28) – by definition calls for a contextual analysis.

32.      Recital 33 of Regulation No 376/2014 states that ‘occurrence reporting and the use of occurrence information for the improvement of safety depend on a relationship of trust between the reporter and the entity in charge of the collection and assessment of the information. That requires strict application of rules on confidentiality. The purpose of protecting safety information from inappropriate use, and of limiting access to the [ECR] solely to interested parties participating in the improvement of civil aviation safety, is to ensure the continuing availability of safety information so that appropriate and timely preventive action can be taken and aviation safety improved. In that context, sensitive safety information should be protected in an appropriate way and its collection should be ensured by guaranteeing its confidentiality, protecting its source and ensuring the confidence of staff working in civil aviation in occurrence reporting systems. Appropriate measures should be put in place to ensure that information collected through occurrence reporting schemes is kept confidential and that access to the [ECR] is restricted. National rules on freedom of information should take into account the necessary confidentiality of such information. The information collected should be adequately protected from unauthorised use or disclosure. It should be used strictly for the purpose of maintaining or improving aviation safety and should not be used to attribute blame or liability’.

33.      Article 1(2) of Regulation No 376/2014 states that the ‘sole objective of occurrence reporting is the prevention of accidents and incidents and not to attribute blame or liability’.

34.      Article 6(1) of Regulation No 376/2014 provides that organisations must designate one or more persons to handle the collection, evaluation, processing, analysis and storage of details of occurrences reported pursuant to Articles 4 and 5 thereof. Article 13(1) of that regulation requires the development of a process to analyse occurrences collected in order to identify the associated safety hazards. Article 6(3) of Regulation No 376/2014 requires designated competent authorities to establish a mechanism for the independent collection, evaluation, processing, analysis and storage of details of occurrences reported pursuant to Articles 4 and 5 thereof.

35.      Article 10(1) of Regulation No 376/2014 provides that any entity entrusted with regulating civil aviation safety, or any safety investigation authority, within the European Union is to have secure full online access to information on occurrences contained in the ECR.

36.      A consideration of the context indicates that the phrase ‘appropriate confidentiality’ requires Member States to ensure that the details of occurrences are made available only to designated persons within organisations, designated competent authorities, entities entrusted with regulating civil aviation safety and safety investigation authorities as expressly provided for in Regulation No 376/2014 and then solely for the purpose of maintaining or improving aviation safety. The corollary of that is that Article 15(1) of Regulation No 376/2014 does not permit the disclosure, upon request, of details of occurrences to a member of the public or to a media undertaking.

37.      For the sake of completeness, I observe that it is not credible that a media undertaking such as RTL can, by obtaining and disseminating the relevant information to the public, contribute in any meaningful way to the maintenance or improvement of aviation safety. That is not to disparage independent, unbiased journalistic endeavour, which is of crucial importance in bringing to light shortcomings of public and private institutions and bodies. It simply reflects the fact that the EU legislature has decided, in the context of the comprehensive system of supervision of which Regulation No 376/2014 is a part, that the public interest is best served by not disclosing relevant information outside the circle of aviation and safety experts whose job it is to analyse that information and to implement any follow-up action.

38.      The two occurrence reports at issue are stored in the relevant national database and in the ECR. (29) The obligations relating to confidentiality and appropriate use of information in Article 15(3) of Regulation No 376/2014 are therefore also relevant.

39.      Article 15(3) of Regulation No 376/2014 provides that information contained in the ECR must be kept confidential. Its use is restricted to the discharge of the safety-related obligations of the Commission, the Agency and the Member States’ competent authorities. Article 10(2) of Regulation No 376/2014 establishes a request procedure in respect of access to the information in the ECR for ‘interested parties’, which Article 2(14) thereof defines as those who are in a position to participate in the improvement of aviation safety by having access to information on occurrences Member States exchange and fall within one of the categories of interested parties set out in Annex II thereto. The decision to disseminate information pursuant to Article 11 must be limited to what is strictly required for the purpose of its user. (30) Interested parties may use the information received only for the purpose specified in the request form, which must be compatible with the objective of Article 1 of Regulation No 376/2014. They may not disclose information so received without the information provider’s written consent. (31) Article 11 of Regulation No 376/2014 sets out how requests for information in the ECR are to be submitted and processed. Article 20(1) of that regulation provides that Articles 10 and 11 thereof establish stricter rules on access to the data and information contained in the ECR than Regulation (EC) No 1049/2001 provides for. (32) Article 10 of Regulation No 376/2014 states that use of the information stored in the ECR must be in accordance with Article 15 thereof.

40.      It is clear from the text of Article 15(3) of Regulation No 376/2014 that the possibility of obtaining access to the occurrence reports stored in the ECR is limited to those who successfully avail themselves of the Article 10 procedure. According to information in the national file, RTL agrees that it cannot benefit from the Article 10 procedure because it is not an interested party within the meaning of Article 2(14) of Regulation No 376/2014. (33)

41.      The parties that submitted observations share the view that ‘details of occurrences’ within the meaning of Article 15(1) of that regulation may not be disclosed, upon request, to a member of the public or a media undertaking. RTL’s arguments before the first-instance court and the referring court, as summarised in the order for reference, do not call that position into question.

42.      First, RTL relies on the fact that recital 33 of Regulation No 376/2014 states that ‘sensitive safety information should be protected in an appropriate way’ to argue that there is a category of safety information which, although it falls within the ambit of mandatory or voluntary occurrence reporting within the context of that regulation, is not sensitive and may therefore be disclosed.

43.      In the absence of any indications in the operative provisions of Regulation No 376/2014 to support that argument, I am not persuaded that the reference to ‘sensitive safety information’ in its recital 33 limits the scope of protection that Article 15(1) of Regulation No 376/2014 extends to details of occurrences. (34)

44.      Second, RTL relies on provisions in Regulation No 376/2014 that relate to the protection of personal details of those reporting occurrences, or mentioned in the context of occurrences, to argue that it is entitled to obtain details of anonymised occurrences. (35) That is not the case. Anonymising occurrences does not necessarily preclude the identification of persons who were involved in them or who reported them. The interpretation proposed by RTL would undermine the effectiveness of Regulation No 376/2014.

45.      Occurrences are, moreover, likely to be reported by those who may have borne some responsibility for them or who were in some way involved when they occurred. Regulation No 376/2014 attaches particular importance to the protection of the personal data of those individuals. Its recital 33 explains that strict confidentiality is crucial for the effective operation of the system because it depends ‘on a relationship of trust between the reporter and the entity in charge of the collection and assessment of the information’. Recitals 34 to 45 thereof explain the importance of the establishment of a ‘just culture’, where individuals are encouraged to report occurrences by shielding them from the adverse consequences of so doing, without prejudice to the application of national criminal law and the proper administration of justice. Recital 35 states that occurrence reports should be disidentified (36) and that details relating to the identity of the reporter and of the persons mentioned in those reports should not be entered into databases. The second paragraph of Article 15(1) of Regulation No 376/2014 stipulates that Member States, organisations and the Agency are to process personal data only to the extent necessary for the purposes of that regulation. Article 16 thereof lays down detailed rules for the protection of the information source. (37)

46.      I conclude from the foregoing that it is only in exceptional circumstances that personal details are to be stored in the databases that contain details of occurrences. It is, moreover, impossible to deduce from the provisions and objectives of Regulation No 376/2014 that details of occurrences, provided that they have been anonymised, may be disclosed upon request to a member of the public or a media undertaking.

47.      Third, RTL relies on Article 13(12) of Regulation No 376/2014, according to which ‘Member States may also publish anonymised occurrence reports and risk analysis outcomes’, to argue that the Minister may provide it with the information it requested. As all of the parties that submitted observations point out, the text of that provision clearly gives Member States a discretion to publish certain anonymised information. (38) It does not, however establish an access regime whereby a member of the public or a media undertaking may request and obtain anonymised details of occurrences. RTL’s interpretation of that provision is, once again, both contrary to the text of Regulation No 376/2014 and undermines its effectiveness.

2.      Article 11 of the Charter and Article 10 ECHR

48.      In the second part of the first question, the referring court asks whether Article 11 of the Charter and Article 10 ECHR, in particular in so far as those provisions refer to the right to receive information, affect the interpretation of Article 15(1) of Regulation No 376/2014. (39) The parties that submitted observations shared the view that that approach challenged the validity of that regulation.

49.      The Explanations relating to the Charter of Fundamental Rights (40) state that Article 11 of the Charter corresponds to Article 10 ECHR. Pursuant to Article 52(3) of the Charter, the meaning and scope of the rights its Article 11 guarantees are the same as those guaranteed by the ECHR, as interpreted by the case-law of the European Court of Human Rights (‘the ECtHR’). (41)Whilst Article 6(3) TEU confirms that the fundamental rights enshrined in the ECHR are general principles of EU law, the European Union has not acceded to the ECHR and it has therefore not formally incorporated that convention into its legal order. The Court has pointed out that Article 52(3) of the Charter does not adversely affect the autonomy of EU law and of the Court of Justice of the European Union. It is thus incumbent on the Court to ensure that its interpretation of Article 11 of the Charter does not disregard the level of protection guaranteed by Article 10 ECHR, as interpreted by the ECtHR. (42)

50.      It is clear, and all of the parties that submitted observations agree, that Article 15(1) of Regulation No 376/2014 limits the right of a media undertaking such as RTL to receive, and therefore impart, certain information. (43)

51.      Pursuant to Article 52(1) of the Charter, (44) limitations on the exercise of rights and freedoms must be provided for by law and respect the essence of those rights and freedoms. Under the principle of proportionality, such limitations must be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (45)

52.      Regulation No 376/2014 and the relevant national law lay down the limitation at issue with sufficient clarity and foreseeability. (46) The requirement that such limitation be provided for by law is, therefore, satisfied.

53.      As to whether the essence of the freedom to receive and impart information is respected, Regulation No 376/2014 in no way restricts the right of media undertakings to obtain information, from other sources, about aviation safety or the awareness of the Netherlands Government in that regard, or to disclose that information as they see fit. Article 13(11) of that regulation moreover obliges Member States to publish a safety review at least once a year to inform the public of the level of safety in civil aviation. It appears, therefore, that the impugned measure respects the essence of the rights and freedoms invoked by RTL.

54.      As to the justification for the limitation on disclosure and whether it is necessary to achieve a legitimate aim, Article 10(2) ECHR refers specifically to the fact that the exercise of the right to freedom of expression may be subject to restrictions that are necessary in the interest of public safety. (47) As points 15 to 19 of the present Opinion observe, the matter of public safety was carefully considered during the process that led to the repeal of Directive 2003/42, and that consideration significantly influenced the confidentiality regime established by Regulation No 376/2014. I have no doubt that the rules against disclosure of occurrence reports are necessary. Disclosure of occurrence reports, upon request, to a member of the public or a media undertaking would impact negatively on incentives to report occurrences, reducing both the number of reports and the quality and completeness of the information so reported, thereby undermining the effective operation of the European Union’s aviation safety management system to an unacceptable degree.

55.      In the light of the foregoing, it is clear to me that the limitations on disclosure at issue in the present case are necessary for the effective operation of the European Union’s aviation safety management system and are a necessary and proportionate limitation of the rights of media undertakings. (48) Article 11 of the Charter does not affect my proposed interpretation of Article 15(1) of Regulation No 376/2014. Nor does it have any impact on the validity of that provision. All of the parties that submitted observations agree on this point.

3.      Article 42 of the Charter

56.      Prior to the hearing, the Court asked the parties that had submitted observations to address the relationship between Articles 11 and 42 of the Charter, in particular: (i) the scope of the rights enshrined in those provisions in the light of Article 52(3) of the Charter and the case-law of the ECtHR on Article 10 ECHR, and (ii) the implications of the coexistence of Articles 11 and 42 of the Charter for the interpretation of Regulation No 376/2014. According to the parties that replied to the Court’s questions at the hearing, that matter is relevant because RTL’s request for information relates to reports stored in the national database in question as well as in the ECR, (49) to which entities within the European Union entrusted with regulating civil aviation safety, or any safety investigation authority, have secure full online access.

57.      Article 42 of the Charter grants a right of access to documents of the institutions, bodies, offices and agencies of the European Union. (50) The right of public access to EU documents enshrined in that provision (51) is a specific manifestation of the right of access to information that appears in Article 11 of the Charter. According to the Explanations relating to the Charter of Fundamental Rights, the right guaranteed in Article 42 of the Charter was taken over from Article 255 EC, now Article 15(3) TFEU. (52) The latter refers to a right of access to documents of the European Union’s institutions, bodies, offices agencies ‘whatever their medium’. It provides that regulations of the European Parliament and the Council are to determine the general principles and limits on grounds of public or private interest governing the exercise of that right. Regulation No 1049/2001, adopted on the basis of Article 255(2) EC, and Regulation No 376/2014 contain those general principles and limits.

58.      Article 2(1) of Regulation No 1049/2001 provides that any EU citizen, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined therein. Article 4(1)(a) of that regulation contains an exception whereby the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest as regards public security. The limitations on disclosure in Regulation No 376/2014 may be considered as specific manifestations of the public security exception. (53)

59.      Article 20 of Regulation No 376/2014 provides that Regulation No 1049/2001 does not apply to Articles 10 and 11 of Regulation No 376/2014, which establish stricter rules on access to the data and information contained in the ECR. Article 10(1) of Regulation No 376/2014, that article being headed ‘Dissemination of information stored in the [ECR]’, stipulates in its second subparagraph that the information on occurrences contained in the ECR are to be used in accordance with, inter alia, Article 15 thereof. Article 15 of Regulation No 376/2014 therefore constitutes a specific instance of the public interest exception to the general right of access to EU documents contained in Article 4(1)(a) of Regulation No 1049/2001. (54)

60.      Article 52(1) of the Charter is relevant to limitations on the exercise of all the rights and freedoms that document recognises, including the limitation contained in Article 15 of Regulation No 376/2014 to the extent that it applies to access to documents in the ECR. The considerations drawn and conclusion reached in points 51 to 55 of the present Opinion are pertinent here, mutatis mutandis, in the context of Article 42 of the Charter. The parties that replied to the relevant written question at the hearing share that opinion.

C.      The second question

61.      Article 15(1) of Regulation No 376/2014 imposes a requirement on Member States and organisations to ensure the appropriate confidentiality of details of occurrences in accordance with their national law. (55)

62.      By the second question, the referring court asks essentially whether national legislation, which provides that no information received about reported occurrences may be disclosed, is compatible with Article 15(1) of Regulation No 376/2014.

63.      In the present context, ‘disclosure’ refers to disclosure to the general public.

64.      It follows from the proposed analysis of the first question that national legislation, which provides that no information received from reported occurrences may be disclosed to the public, is compatible with Article 15(1) of Regulation No 376/2014.

D.      The third and fourth questions

65.      In the light of the proposed responses to the first and second questions, there is no need to answer the third and fourth questions. As the parties that submitted relevant observations pointed out, those questions require answers only if the reply to the second question is in the negative.

66.      For the sake of clarity, I would add that it follows from the response to the first and second questions that, to the extent that information received by Member States, organisations and the Agency pursuant to Articles 4, 5 and 10 of Regulation No 376/2014 is contained in other government documents, Article 15(1) of the Regulation precludes the disclosure of that information, upon request, to a member of the public or a media undertaking. (56)

V.      Conclusion

67.      In the light of those considerations, I propose that the Court answer the first and second questions posed by the Raad van State (Council of State, Netherlands) as follows:

Article 15(1) of Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007, in particular the words ‘details of occurrences’ and ‘appropriate confidentiality’, read in the light of Articles 11 and 42 of the Charter of Fundamental Rights of the European Union and Article 10 of the European Convention on Human Rights,

must be interpreted as meaning that:

(1)      all information received pursuant to Articles 4, 5 and 10 of Regulation No 376/2014 is confidential so that none of it may be disclosed, upon request, to a member of the public or a media undertaking; and

(2)      it does not preclude national legislation to that effect.

1      Original language: English.

2      In October 2015, the Onderzoeksraad voor Veiligheid (Safety Board, Netherlands) published reports of three investigations, one into the circumstances surrounding the downing of flight MH17; one on the decision-making process regarding flight routes and one on the procedure for compiling passenger lists. It issued recommendations to prevent such disasters in the future. An MH17 Joint Investigation Team, consisting of members of the police and judicial authorities of Belgium, the Netherlands, Australia, Malaysia and Ukraine is conducting a criminal investigation.

3      Regulation of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007 (OJ 2014 L 122, p. 18).

4      ECCAIRS (European Coordination Centre for Aircraft Incident Reporting Systems) is the software that all Member States and the European Central Repository (‘ECR’) use to store occurrence reports (recital 16 of Regulation No 376/2014).

5      Decision of 17 October 2018.

6      At the hearing the Netherlands Government confirmed the scope of RTL’s appeal.

7      Judgment of the Rechtbank Midden-Nederland (District Court, Central Netherlands), 7 November 2019, UTR 18/4363 (NL:RBMNE:2019:5226).

8      Communication of 25 October 2011 from the Commission to the Council and the European Parliament, Setting up an Aviation Safety Management System for Europe (COM(2011) 670 final).

9      Directive of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation (OJ 2003 L 167, p. 23).

10      Communication of 25 October 2011 from the Commission to the Council and the European Parliament, Setting up an Aviation Safety Management System for Europe (COM(2011) 670 final), Section 3.3.

11      Commission staff working paper, Impact Assessment, Accompanying document to the Proposal for a Regulation of the European Parliament and the Council on occurrence reporting in civil aviation (SWD(2012) 441 final) (18 December 2012), Annex I, Section 4 and Annex II, Section 4.1. Although Article 8(1) of Directive 2003/42 generally required Member States to take measures to ensure appropriate confidentiality of the information received, some respondents indicated that information had been disclosed upon request.

12      Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council on occurrence reporting in civil aviation amending Regulation (EU) No 996/2010 and repealing Directive 2003/42/EC, Commission Regulation (EC) No 1321/2007 and Commission Regulation (EC) No 1330/2007’ (COM(2012) 776 final) (OJ 2013 C 198, p. 73).

13      Incidents, serious incidents and accidents as defined in Regulation No 996/2010, are also subject to Regulation No 376/2014.

14      Recital 18 of Regulation No 376/2014.

15      Articles 4 and 5 of Regulation No 376/2014. See also Commission Implementing Regulation (EU) 2015/1018 of 29 June 2015 laying down a list classifying occurrences in civil aviation to be mandatorily reported according to Regulation (EU) No 376/2014 of the European Parliament and of the Council (OJ 2015 L 163, p. 1).

16      Article 6 of Regulation No 376/2014.

17      Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1) established the European Aviation Safety Agency, which eventually became the European Union Aviation Safety Agency (see Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, No 996/2010, No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ 2018 L 212, p. 1)).

18      Articles 8 and 9 of Regulation No 376/2014.

19      Articles 13 and 14 of Regulation No 376/2014.

20      At the hearing, the Netherlands Government confirmed that the referring court does not consider that Regulation No 996/2010, to which Article 15(2) of Regulation No 376/2014 refers, is relevant to RTL’s request for information. The parties that were present at the hearing agreed with the referring court’s approach. I therefore address the questions on the basis that they are presumed to be relevant for the disposal of the proceedings pending before the referring court (see, for example, judgment of 27 June 2018, Altiner and Ravn, C‑230/17, EU:C:2018:497, paragraph 22 and the case-law cited). For the sake of completeness, I also observe that, in addition to providing for the mandatory and the voluntary reporting of occurrences, Regulation No 376/2014 covers the reporting, on a voluntary basis, of ‘safety-related information’, as well as its analysis and, if appropriate, sharing and follow-up (see Article 3, Article 5(1)(b), (2)(b), (3)(b) and (4) to (6), and Article 9(3) of Regulation No 376/2014). Since the order for reference indicates that the present request for a preliminary ruling concerns reported occurrences, and not ‘safety-related information’, I will not address the latter.

21      Those that are subject to mandatory reporting (see Article 4(6) and (7) of Regulation No 376/2014). The information flow for the voluntary reporting of occurrences and of other safety-related information is not materially different (see Article 5 of Regulation No 376/2014). See also EASA, ‘Easy Access Rules for Occurrence Reporting (Regulation (EU) No 376/2014)’, December 2022, pp. 111 to 115.

22      Article 6(5) of Regulation No 376/2014.

23      This relates to organisations that the Agency does not certify (see Article 4(8) and Article 5(6) of Regulation No 376/2014).

24      Article 6(9) and (10) of Regulation No 376/2014.

25      Article 9 and Article 10(1) of Regulation No 376/2014.

26      Article 14 of Regulation No 376/2014.

27      See, to that effect, judgment of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 33 and the case-law cited).

28      The Spanish-, Czech-, German-, Italian- and Dutch-language versions of Article 15(1) of Regulation No 376/2014 use the adjective ‘suitable’ or ‘appropriate’. The French-language version omits the adjective and refers to ‘la confidentialité’.

29      As confirmed at the hearing.

30      Article 11(8) of Regulation No 376/2014.

31      Article 11(7) of Regulation No 376/2014.

32      Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). See also Article 119 of Regulation 2018/1139, which provides that, although Regulation No 1049/2001 applies to documents held by the Agency, that is without prejudice to the rules on access to data and information laid down in Regulation No 376/2014.

33      For the sake of completeness, I observe that, pursuant to Article 15(4) of Regulation No 376/2014, the competent authorities of the Member States and the authorities involved in the administration of justice must cooperate with each other in order to ensure a correct balance between the need for the proper administration of justice and the necessary continued availability of safety information. The administration of justice relates to prosecutions for wilful misconduct or the manifest, severe and serious disregard of an obvious risk and a profound failure of professional responsibility to take such care as is required. Article 15(4) of Regulation No 376/2014 therefore permits disclosure of information, pursuant to advance administrative arrangements, when the need for the proper administration of justice outweighs the necessity of ensuring its continued availability. Not only is that provision irrelevant in the circumstances that pertain here, but it also confirms that confidentiality is of central importance in Regulation No 376/2014.

34      Recitals do not have binding force (see, for example, judgment of 19 November 1998, Nilsson and Others, C‑162/97, EU:C:1998:554, paragraph 54). They are often helpful in interpreting a legal instrument’s operative provisions, but a recital cannot be relied upon to interpret an operative provision in a manner contrary to its text (see, for example, judgment of 25 November 1998, Manfredi, C‑308/97, EU:C:1998:566, paragraph 30). Whilst it is possible that recital 33 of Regulation No 376/2014 refers obliquely to Article 14 of Regulation No 996/2010, entitled ‘Protection of sensitive safety information’, that does not advance RTL’s argument.

35      Article 2(9) of Regulation No 376/2014 defines ‘anonymisation’ as ‘the removal from occurrence reports of all personal details relating to the reporter and to the persons mentioned in occurrence reports and any details, including the name of the organisation(s) involved in the occurrence, which may reveal the identity of the reporter or of a third party or lead to that information being inferred from the occurrence report’.

36      Article 2(6) of Regulation No 376/2014 defines ‘disidentified information’ as ‘information arising from occurrence reports from which all personal data such as names or addresses of natural persons have been removed’.

37      Article 7.2(3) of the Law on Aviation provides that names and addresses of individuals are not to be recorded when an occurrence is registered.

38      Although the point is not at issue, I consider that, in the light of the objective of Regulation No 376/2014, Member States may exercise that discretion only when they consider that it is in the public interest to do so, taking into account the need to safeguard the effectiveness of its provisions.

39      Pursuant to settled case-law and Article 51(1) of the Charter, the fundamental rights guaranteed in the legal order of the European Union apply to the Member States in all situations governed by EU law, but not outside such situations (judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 26 and the case-law cited); the EU institutions are required to respect the rights enshrined in the Charter (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 110).

40      OJ 2007 C 303, p. 17. Under Article 52(7) of the Charter, the courts of the European Union and of the Member States are to give due regard to those explanations.

41      Judgments of 26 April 2022, Poland v Parliament and Council (C‑401/19, EU:C:2022:297, paragraph 44), and of 8 December 2022, Google (De-referencing of allegedly false information)(C‑460/20, EU:C:2022:962, paragraph 59 and the case-law cited).

42      See, to that effect, judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission (C‑702/19 P, EU:C:2020:857, paragraphs 24 and 25 and the case-law cited).

43      ECtHR, 8 November 2016, Magyar Helsinki Bizottság v. Hungary (CE:ECHR:2016:1108JUD001803011, §§ 157 to 170 and the case-law cited), and, to that effect, judgment of 15 March 2022, Autorité des marchés financiers (C‑302/20 EU:C:2022:190, paragraph 68 and the case-law cited).

44      See also Article 10(2) ECHR.

45      Judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 360 and the case-law cited); of 9 November 2010, Volker und Markus Schecke and Eifert (C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 50); and of 26 April 2022, Poland v Parliament and Council (C‑401/19, EU:C:2022:297, paragraph 63). According to the ECtHR, exceptions must be construed strictly and established convincingly (see, for example, ECtHR, 10 December 2007, Stoll v. Switzerland, CE:ECHR:2007:1210JUD006969801, § 101 and the case-law cited).

46      See, for example, ECtHR, 15 October 2015, Perinçek v. Switzerland (CE:ECHR:2015:1015JUD002751008, paragraph 131 and the case-law cited).

47      See, by analogy, judgment of 1 December 2011, Painer(C‑145/10, EU:C:2011:798, paragraph 115).

48      See, by analogy, judgments of 13 September 2011, Prigge and Others (C‑447/09, EU:C:2011:573, paragraph 58), and of 5 July 2017, Fries (C‑190/16, EU:C:2017:513, paragraph 43).

49      Documents falling within the scope of Article 42 of the Charter are usually requested from the relevant institutions, bodies, offices and agencies of the European Union. In the context of Regulation No 376/2014, requests for information in the ECR must be addressed to a designated national point of contact (Article 10 of Regulation No 376/2014). It is unclear whether the Minister dealing with RTL’s request for information considered that that request included all of the relevant information on occurrences stored in the ECR (in other words, information that other Member States had transferred to the ECR).

50      Article 10(1) of Regulation No 376/2014.

51      Article 42 of the Charter has no direct equivalent in the ECHR; access to documents falls within the scope of freedom to receive information protected by Article 10 ECHR.

52      Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties.

53      In common parlance, safety measures are usually aimed at preventing or mitigating unintentional harm, whereas security measures relate to the prevention of harm and the mitigation of threats arising from deliberate actions. Regulation No 376/2014 formally concerns safety in civil aviation rather than public security. It is nevertheless clear that the occurrences that must be reported under that regulation include unintended events and those involving wilful misconduct. In any case, I concur with the view expressed, in a different context, by Advocate General Bot that the concept of public security includes issues of public safety (Opinion of Advocate General Bot in Van Gennip and Others (C‑137/17, EU:C:2018:272, point 82)).

54      At the hearing the Commission drew an analogy with the situation described in, for example, the judgment of 5 February 2018, Pari Pharma v EMA (T‑235/15, EU:T:2018:65, paragraphs 54 and 55).

55      The nature of regulations and of their function in the system of sources of EU law is such that their provisions generally have immediate effect in the Member States’ legal orders. The application of certain of their provisions may, on occasion, require Member States to adopt implementing measures: judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244, paragraph 17 and the case-law cited).

56      The Minister identified two reports in response to RTL’s request for information. The existence of other documents, including policy documents that contain information from or about occurrence reports, thus appears to be speculative (see paragraph 10.7 of the order for reference).

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