Published on 16 September 2024
THIRD SECTION
Application no. 38564/23
VOULIWATCH NON-GOVERNMENTAL ORGANISATION
against Greece
lodged on 16 October 2023
communicated on 28 August 2024
SUBJECT MATTER OF THE CASE
The applicant association is a non-governmental organisation established in Greece, aiming, inter alia, to the promotion, on national and international level, of the principles and procedures of parliamentary democracy, of the functioning and works of the Greek and European Parliament, and of fundamental democratic principles, such as accountability, transparency and organised dialogue between the elected representatives and citizens.
In March 2020, a contract was signed between the General Secretariat of Information and Communication of the Greek Government and a private company on creating information material for the public on combatting Covid-19. That contract had not followed the general rules on procurement and publication of the conditions but was signed under the special legislation enacted for combatting Covid-19, which authorised, inter alia, the award of public contracts for services of public communication and information in procedure deviating from the general rules on procurement of public contracts.
The applicant association, invoking Article 10 of the Convention and its rights under Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, requested certain documents pertaining to the contract and the offer and deliverables submitted by the private company. The General Secretariat of Information and Communication did not reply within twenty days; the applicant association lodged an appeal against the tacit refusal with the National Transparency Authority. As it did not receive any reply to that appeal, it then lodged an application for annulment with the administrative courts, which was granted. The Athens Administrative Court of Appeal remitted the case to the administration.
On 7 June 2022 the National Transparency Authority rejected the applicant association’s request on the grounds that the applicant association was equal to any citizen who was interested in the observation of legality, without having a special interest to be granted the information requested, which was commercial data with commercial value linked to their confidential character and did not belong to the category of open data.
The applicant association lodged a new application for annulment with the administrative courts, which was dismissed on the grounds that the right to access to information was also regulated by other legislative provisions, including those concerning commercial confidentiality, and such commercial data was not open data; there was no right of access to commercial confidential data.
The applicant association, invoking its role as “public watchdog”, complains under Article 10 of the Convention that the denial of access to the requested information was in breach of its right to receive and impart information.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to receive and impart information within the meaning of Article 10 § 1 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 149-80, 8 November 2016)?
2. In the affirmative, was that interference justified under Article 10 § 2 of the Convention, (see Magyar Helsinki Bizottság, cited above, §§ 181-200; Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, §§ 104-21, 26 March 2020; and Šeks v. Croatia, no. 39325/20, §§ 60-73, 3 February 2022)?
In particular:
(a) was the interference “prescribed by law”?
(b) did it pursue one or more of the legitimate aims referred to in Article 10 § 2 of the Convention?
(c) was it necessary in a democratic society having regard to the applicant association’s social role and the domestic court’s reasoning that all the documents requested were covered by confidentiality due to their commercial value (see also Halet v. Luxembourg [GC], no. 21884/18, § 142, 14 February 2023)?