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2014 02 23 * University of Washington * EU CONSTITUTION (Law E520) - Equality and the Democratic Life of the European Union, Nondiscrimination, Citizenship, Fundamental Rights and Freedoms - Citizen’s Right to Access to a Document: Joined cases c 39/05p and 52/05

Citizen’s Right to Access to a Document: Joined cases c 39/05p and 52/05
The ECJ in Joined Case C-39/05 P and C-52/05 P Sweden and Turco v Council overruled a judgment of the Court of First Instance refusing to give public access to a document of the Council's Legal service containing legal advice. 

Factual Background : Mr. Turco vs Council :
In this case Mr Turco asked the Council for access to the documents appearing on the agenda of the ‘Justice and Home Affairs’ Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the ground that it deserved special protection so as not to create uncertainty regarding the legality of the measure adopted further to that opinion. 

The Court of First Instance: ruled in favor of Council
Mr Turco then challenged the Council's refusal before the Court of First Instance  and the Court of First Instance upheld the Council decision in its judgment in Case T-84/03 Turco v Council. The Court of First Instance held that disclosure of legal opinions such as the one requested could give rise to doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service. The Court of First Instance held that theoverriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.

The ECJ: Mr Turco and Sweden both appealed that judgment to the ECJ.
The ECJ held that the reasons advanced by the Council and upheld by the Court of First Instance for withholding legal advice from public gaze were wrong.

i.          “openness  contributes to greater legitimacy of decision making process”:
Regarding the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, the ECJ stated that it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing different points of view to be openly debated. Rather, it is in fact a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.

ii.         Risk  that disclosure would undermine the protection of legal advice must not be “ general or abstract”
The Court continued that the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the EC legislature because the Council’s legal service had given an unfavorable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed. Consequently, the Court found that to submit, in a general and abstract way, that there is a risk that disclosure of legal advice relating to legislative processes may give rise to doubts regarding the lawfulness of legislative acts does not suffice to establish that the protection of legal advice will be undermined for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001 and cannot, accordingly, provide a basis for a refusal to disclose such advice.

iii.        Public disclosure would not erode independence of lawyers but rather would allow “frank, objective and comprehensive advice” i.e. the risk of affecting the independence of legal advice should be weighed against the overriding public interests (proportionality test?)
The Council also submitted that public disclosure of its advice would erode the independence of its lawyers because pressure would be put on them by their political masters to change the advice. The Court dismissed that argument too. It held that, as regards the risk of pressure being applied to influence the content of opinions issued by the Council’s legal service, even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent on the Council to take the necessary measures to put a stop to it. The risk of affecting the independence of legal advice should be weighed against the overriding public interests which underlie Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information*** which has formed the basis of a legislative act, as referred to particularly in recitals 2 and 6 of the preamble to Regulation No 1049/2001.

iv.        ECJ guideline for possible exceptions:
(a) “ sensitive nature”
or “ particularly wide scope” plus
(b) the requirement to state the reason for refusal
The Court did state that legal advice could be kept secret in some circumstances. The advice may be of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is mandatory on the institution concerned to give adetailed statement of reasons for such a refusal. 

Reflections:
Transparency and good administration have become a core element of the post-Lisbon Constitutional Reforms. (See art. 1 and 11 TEU, 15 and 298 TFEU and art. 41 and 42 Charter).
After reading the judgment of these jointed cases, the first impression I had was that the EU framework seemed to support the right to access a document contributing to the openness and transparency very effectively and satisfactorily. However, after doing some research further, it reveals that there is gap between the principles and the EU institutions’ practices, despite the Turco jurisprudence and the Regulation No 1049/2001. In addition, it has been suggested that the Member States considered this ruling as a burden or obstacle to their daily practice in the Council working groups and with the support of the Council Secretariat invoked more and more often as an exception to the Citizen’s right of access to documents the need to protect the “efficiency of the decision making process”. Regrettably, the Commission, instead of supporting the minority of the “transparency minded” Member states, joined the majority of the Member States (including major EU member States such as France, Italy, and UK who also against the 2008 reform proposal on this matter) disfavoring a wide interpretation of the access to documents principle, and rejected the European Parliament request for a more ambitious revision of Regulation 1049/01.
Therefore, it remains to be seen how the EU institutional cultures and practices on this matter can be further improved, since openness, according to the Court, “contributes to strengthening democracy by enabling citizens to scrutinize all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights” (Sweden and Turco v Council, para 46).