The Berlin Administrative Court (Verwaltungsgericht) ruled in favor of information access under the German Freedom of Information Act (Informationsfreiheitsgesetz, IFG) in a case related to the German passenger car toll system (Pkw-Maut). The case revolved around claims from plaintiffs – the prospective toll operators – for specific documents from the Federal Ministry of Transport (Bundesverkehrsministerium). The Ministry had claimed various grounds to withhold the information, including potential adverse effects on ongoing arbitral proceedings. However, the court rejected these arguments and asserted the primacy of the Information Freedom Act (IFG) over the procedural rules of arbitral proceedings. This decision sets an important precedent concerning the interplay between information access and arbitration procedures.
In 2015, the German Bundestag decided to introduce a passenger car toll system. In late 2018, the Ministry of Transport, under then-Minister Andreas Scheuer, entered into contracts with the plaintiffs to operate the toll system despite knowing about the legal concerns raised by the European Union, and a case pending in the European Court of Justice (ECJ). In June 2019, the ECJ ruled that the German toll system, in combination with a tax relief for domestic users only, violated EU law (ECJ, judgment of 18 June 2019 – C-591/17). Subsequently, the Ministry terminated the operator contracts, leading to the plaintiffs’ claims for compensation. The prospective operators commenced arbitral proceedings against the Federal Republic of Germany, seeking damages for the termination. Before the Berlin Administrative Court, the plaintiffs demanded the release of specific documents under the Freedom of Information Act which they intended to use in the arbitral proceedings, but the Ministry cited various reasons for denying access.
The Berlin Administrative Court comprehensively addressed and dismissed the Ministry’s arguments. Firstly, it clarified that the Information Freedom Act was not overridden by the procedural rules governing the arbitral proceedings, namely the German Code of Civil Procedure (ZPO) and the DIS Arbitration Rules).
The Ministry relied on Sec. 3 No. 1g Var. 1 IFG, which allows denial of information if its disclosure could adversely affect ongoing court proceedings. The court acknowledged that arbitral proceedings could be considered “court proceedings” for the purposes of this provision. However, the court held that the mere fact that the information was relevant to the ongoing arbitral proceedings was not enough to justify withholding it. For this exception to apply, there must be a concrete and foreseeable negative impact on the arbitration proceedings, which the Ministry failed to demonstrate.
The court emphasized that the purpose of Sec. 3 No. 1g Var. 1 IFG was to protect the integrity and effectiveness of court proceedings. However, its purpose does not extend to protecting the procedural and substantive interests of the government as a party involved in such proceedings. In this case, the Ministry had not shown any adverse effects that would result from the release of the requested documents. The court emphasized that the arbitral proceedings would continue to operate fairly even with the disclosure of the requested information taking place.
The court also addressed the Ministry’s argument that the access to information could interfere with the agreed-upon rules of evidence in arbitral proceedings. It accepted that the DIS Arbitration Rules allow for independent investigations by the arbitral tribunal beyond the evidence offered by the parties. However, if the court ordered the release of the requested documents, this would not undermine the arbitral tribunal’s authority to do so. The court underlined that is was for the arbitral tribunal to decide on the relevance of the documents and their use in the proceedings.
The Berlin Administrative Court’s decision is, to the best of my knowedge, the first court decision to address the issue of information access under the IFG in support of arbitration. By ruling in favor of the plaintiffs’ right to obtain specific documents under the Freedom of Information Act, the court has upheld the principles of transparency and accountability of state actors. It confirmed that the rules of arbitral proceedings do not override the right to access information governed by the Freedom of Information Act. This precedent ensures that information access remains a fundamental right also in the context of alternative dispute resolution methods like arbitration.
An extended German-language version of this post has been published on zpoblog.
Administrative Court (Verwaltungsgericht) Berlin, judgment dated 25 November 2022 – file no. 2 K 195/21