On 18 January 2024, the Court of Justice handed down its judgment in Case C‑451/22, RTL Nederland and RTL Nieuws, on the interpretation of Article 11 of the Charter of Fundamental Rights of the European Union and of Article 15(1) of Regulation (EU) No 376/2014. The request has been made in proceedings between, on the one hand, RTL Nederland BV and RTL Nieuws BV (collectively the “RTL undertakings”) and, on the other hand, the minister van Infrastructuur en Waterstaat (Minister for Infrastructure and Water Management of the Netherlands) concerning a decision by which the latter refused a request for information relating to the downing of an aircraft that occurred while it flew over eastern Ukraine.

On 10 January 2018, the RTL undertakings requested that the minister van Justitie en Veiligheid (Minister for Justice and Security of the Netherlands) communicate a set of information relating to the downing of an aircraft chartered by Malaysia Airlines which took place on 17 July 2014 while the latter was crossing the part of the Ukrainian airspace above the Donetsk region. The Minister for Justice and Security forwarded the request to the Minister for Infrastructure and Water Management, which refused it referring to the existence of special rules on the prohibition of disclosure that stem from Regulation No 376/2014.

The RTL undertakings filed an administrative appeal against that decision, which however was confirmed by the Minister for Infrastructure and Water Management itself. The RTL undertakings, therefore, brought an action before the rechtbank Midden-Nederland (District Court of Central Netherlands), which dismissed it as unfounded. The RTL undertakings, hence, appealed before the Raad van State (Council of State of the Netherlands; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether Article 15 of Regulation No 376/2014, read in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter, must be interpreted as meaning that information held by the national competent authorities regarding an occurrence relating to aviation safety, within the meaning of Article 2(7) of that regulation, is subject to a confidentiality regime the consequence of which is that neither the public nor even a media undertaking has the right to have access to that information.

According to the Court, in light of the wording of Article 15 of Regulation No 376/2014, the context in which it occurs and the objectives pursued by the legislation of which it forms part, all information that is held by the national competent authorities regarding an occurrence relating to aviation safety, as defined by the regulation itself, is subject to such a confidentiality regime that the public does not have the right to have access to that information in any form. The obligation of confidentiality laid down therein, therefore, applies to any information collected in any form by a national competent authority regarding an accident within the meaning of Article 2(5) of Regulation No 376/2014 as well as to any information contained in any form in a document or medium which has been drawn up or compiled following the notification of such an occurrence and which is in the corresponding national database as well as in the European Central Repository. Furthermore, Article 15 of Regulation No 376/2014, while placing a limitation on the exercise of the right to freedom of expression and information enshrined in Article 11 of the Charter, satisfies the conditions laid down by Article 52(1) of the latter for such a limitation to be accepted.

Marco Stillo