Article 15(3) TFEU is the legal basis for the Commission's policy on disclosure of submissions to the Courts and this excludes the judicial activities of the Court of Justice of the EU from the public right of access to documents. It complies with the case law of the Court of Justice in API (joined cases C-514//07P, C-528/07P and C‐532/07P), where the Court ruled that this exclusion is justified to ensure that the exchange of arguments by the parties and the deliberations of the Court take place in an atmosphere of total serenity (cf. paragraph 92 of the judgment).

In closed cases the Commission discloses its own submissions, sometimes expunged in order to protect legitimate interests. The Commission refused Dr Breyer access to submissions from the other party in case T-189/09. The Commission considers that, as a consequence of Article 15(3) TFEU and the case law in API, submissions from other parties to the Courts do not fall within the scope of Regulation (EC) No 1049/2001 regarding public access to documents. This question is sub judice in the case T-188/12 lodged by Dr Breyer.

The Commission has asked Dr Breyer to remove his application to the Court and the Commission's defence from his website, since, according to the Court's Rules of Procedure, parties to proceedings receive submissions of the other parties only for the purpose of pursuing their own case. It considers that publication of submissions in pending cases adversely affects the due administration of justice as interpreted by the Court in API and previously in Case T-174/95.

The Commission hopes that, when considering a possible re-publication, Members of the Parliament would base themselves on the Treaty and on the case law of the Court.