Unequal representation of stakeholders in the Commission’s impact assessment process and the protection of the decision-making process

Participation of interest groups in the Commission’s decision-making process is a vital part of EU policy-making. Nonetheless some interest groups are overrepresented during this process due to their resources and information capabilities. As a result, they are capable of exerting considerable influence on the Commission’s decision-making process. This problem is particularly severe during the impact assessment process where interest groups submit information through stakeholders’ consultations. They also request access to impact assessment documents in order to know the information held by the Commission during the preparation of a legislative proposal. Against this background the issue is whether unequal representation of stakeholders during the impact assessment process undermines the Commission’s decision-making process, thus justifying the Commission to refuse access to impact assessment documents (Article 4(3), Regulation No 1049/2001). In ClientEarth (C-57/16) the Court of Justice rejected this argument, however this article argues that in the absence of countervailing information, overrepresentation of stakeholders is capable of compromising the Commission’s decision-making process and the Commission may therefore justifiably prevent over represented stakeholders from accessing impact assessment documents.