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).