In this case, Mr Turco had submitted a request to the Council for access to the documents appearing on the agenda of a JHA Council meeting, including an opinion of the Council’s legal service on a proposal for a Council Directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused access to that opinion on the basis of Art. 4(2) of Regulation 1049/200. Mr Turco made a confirmatory application to the Council asking it to reconsider its position. In the contested decision, the Council agreed to disclose the introductory paragraph of that opinion, but it refused to reconsider its position as to the remainder. In essence, it justified its confirmation of refusal of access on the ground, first, that the advice of its legal service deserved particular protection, because it was an important instrument which enabled the Council to be sure of the compatibility of its acts with Community law and to move forward the discussion of the legal aspects at issue. Secondly, disclosure of the legal service’s opinions could create uncertainty regarding the legality of legislative acts adopted further to those opinions and, therefore, jeopardise the legal certainty and stability of the Community legal order.

The Court of Justice reiterated that when the Council was asked to disclose a document, it must assess, in each individual case, whether that document fell within the exceptions to the right of public access to documents of the institutions set out in Art. 4 of Regulation 1049/2001. In view of the objectives pursued by Regulation 1049/2001, those exceptions must be interpreted and applied strictly. (Case C-64/05 P Sweden v Commission and Others [2007])

The Court of Justice held that examination to be undertaken by the Council when it was asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in 4(2) of Regulation 1049/2001. The exception relating to legal advice laid down in the second indent of Art. 4(2) of Regulation 1049/2001 must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical.

However, it was for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, from increased openness, in that this enabled citizens to participate more closely in the decision-making process and guaranteed that the administration enjoyed greater legitimacy and was more effective and more accountable to the citizen in a democratic system. It was incumbent on the Council to establish in each case whether the general considerations normally applicable to a particular type of document were in fact applicable to a specific document which it had been asked to disclose. These considerations were of particular relevance where the Council was acting in its legislative capacity. The Court of Justice stated that openness in that respect contributed to strengthening democracy by allowing citizens to scrutinize all the information which had formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of their democratic rights.

The Court of Justice held that to submit, in a general and abstract way, that there was a risk that disclosure of legal advice relating to legislative processes might give rise to doubts regarding the lawfulness of legislative acts did not suffice to establish that the protection of legal advice would be undermined for the purposes of the second indent of Art. 4(2) of Regulation 1049/2001 and could not, accordingly, provide a basis for a refusal to disclose such advice. Furthermore, the Court of Justice found that there appeared to be no real risk that was reasonably foreseeable and not purely hypothetical that disclosure of opinions of the Council’s legal service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of the second indent of Art. 4(2) of Regulation 1049/2001. It followed that Regulation 1049/2001 imposed, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process.