The Law of 14 September 2018 on a transparent and open administration (“the Law“), gives any person the right to obtain access to a document held by the administration provided that the requested document relates to the exercise of an administrative activity. However, the Law does not define the notion of “administrative activity”.
The dispute between the State, the municipality of Bissen and Google on the one hand, and the Ecological Movement on the other hand, allowed the Administrative Court to clarify this notion and the scope of application of the Law.
In this case, the State, the municipality of Bissen and Google had concluded a memorandum of understanding relating to the establishment of a data centre in Bissen. The Ecological Movement had requested the communication of the memorandum from the State and the municipality, then before the Commission on Access to Documents.
This communication having been refused, the Ecological Movement challenged this refusal before the administrative tribunal.
By a judgment of 9 November 2020, the administrative tribunal rejected the request of the Ecological Movement, which appealed this judgment.
By a decision of 6 April 2021, the Administrative Court held that:
“The administrative activity does not have an end in itself but is called to serve the general interest. (…)
In this respect, it is a public service provided, not, in principle, by private actors, but by public entities.
This gives rise to the notion of public service, which underlies the administrative activity, which can therefore be validly circumscribed by the term public service mission. It follows that the notion of “documents relating to the exercise of an administrative activity” can be circumscribed by all the documents for which there is a sufficient link with the public service mission of the entity referred to in the Law that produces or receives them. ”
The Court concludes that the State and the municipality did not act in the context of the memorandum as public bodies carrying out an administrative activity relating to a public service, and consequently, that the Ecological Movement does not have a right of access to this memorandum.