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2008 12 11 * Essence of the judgment of the ECJ of 1 july 2008 in cases C-39/05P and C-52/05P (Maurizio Turco) * O.W. Brouwer

11 DECEMBER 2008


O.W. Brouwer

1. Judgment by Grand Chamber of the ECJ

Note: Kingdom of Sweden appealed as well.

Important support by Republic of Finland, Kingdom of Denmark and Kingdom of the Netherlands.

(other side: coordinated view of Legal Services of Council and Commission + UK)

2. Important generally applicable points in judgment

(a) examination to be undertaken by institution (para. 33-47)

Examination in three stages:

(i) Council must satisfy itself that Doc does indeed relate to legal advice and must decide which parts of it are actually concerned and maybe covered by exception. Fact that Doc is headed “legal advice/opinion” does not mean that it is automatically entitled to protection of legal advice. Doc must indeed concern such advice.

(ii) Examine whether the parts of the Doc in question could undermine the protection of that advice (exception must be construed as aiming to protect an institution’s interests in seeking legal advice and receiving frank, objective and comprehensive advice).
Risk of that interest being undermined must be reasonable foreseeable and not purely hypothetical.

(iii) If risk of undermining protection of legal advice, incumbent on institution to ascertain whether there is any overriding public interest justifying disclosure. It is for the institution to balance the particular interest to be protected by non-disclosure of the Doc concerned against, inter alia, public interests in Doc being made accessible in light of need to enable citizens to participate more closely in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (fundamental considerations taken from the pre-amble of Regulation 1049/2001).
Subsequently observation that these considerations are of particular relevance when Council is acting in its legislative capacity (openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of 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) (also reference to Article 207(3) EC and Article 12(2) Reg. 1049/2001).

(b) Duty to state reasons (para. 48-51)

It is incumbent on the Council/institution to establish in each case whether general considerations normally applicable to a particular type of Doc are in fact applicable to a specific document which it has been asked to disclose.

3. Specific considerations legal opinions concerning EU legislative process (para. 59-70)

(a) As regards the fear expressed by 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: 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 divergences between various points of view to be openly debated.
It is in fact rather 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.

(b) The risks that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the Community legislature because the Council’s Legal Service had given an unfavourable 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, 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 article 4(2) of Regulation 1049/2001.

(c) As regards the argument that the independence of the Council’s Legal Service would be compromised by possible disclosure of legal opinions (…), it must be pointed out that that fear lies that very heart of the interests protected by article 4(2). The exception seeks specifically to protect an institution’s interest in seeking legal advice.
However, the Council relied on mere assertions, which were in no way substantiated by detailed arguments.

(d) Number of considerations why there would appear to be no real risk that it is reasonably foreseeable and not purely hypothetical of that interest being undermined:
- As regards the possibility of pressure being applied for the purpose of influencing the content of opinions: it need merely be pointed out that even if members of Legal Services were subjected to improper pressure, it would be that pressure, and not the possibility of the disclosure of the opinions, which would compromise the institution’s interests in receiving frank, objective and comprehensive advice (and it would be incumbent on the institution to take the necessary measures to put a stop to it).
- As regards argument that it could be difficult for an institution’s legal service which had initially expressed a negative opinion regarding a legislative act in the process of being adopted subsequently to defend the lawfulness of that act if its opinion had been published: it must be stated that such a general argument cannot justify an exception to the openness provided for by Regulation 1049/2001.
- In view of these considerations: no risk that it is reasonably foreseeable and not purely hypothetical that disclosure of legal opinions issued in the course of legislative procedures might undermine the protection of legal advice.

(e) Insofar as interest in protecting legal advice could be undermined by disclosure, that risk needs to be weighed up against the overriding public interests which underlie Regulation 1049/2001: such overriding public interest is constituted by the fact that disclosure of Docs containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated, increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act (recitals 2 and 6 of preamble Regulation 1040/2001).
It follows: “Regulation 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s Legal Service relating to a legislative process”.
- That finding does not preclude refusal to disclose specific legal opinion of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such case, incumbent on the institution to give a detailed statement of reasons for such refusal. Moreover, under article 4(7) of Reg. 1049/2001, exception can only apply for the period during which protection is justified on the basis of the content of the Doc.

(f) Overriding public interest capable of justifying the disclosure of a document does not need to be distinct from the principles which underlie Reg. 1049/2001.

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