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2008 07 04 * The Times * Transparency overrides EU institutional secrecy

Court of Justice of the European Communities
Published July 4, 2008
Turco and Kingdom of Sweden (supported by Denmark, Finland and The Netherlands) v Council of the European Union (supported by Commission of the European Communities and United Kingdom)
Joined Cases C-39/05P and C-52/05P
Before V. Skouris, President, and Judges P. Jann, C. W. A. Timmermans, A. Rosas, K. Lenaerts, A. Tizzano, G. Arestis, U. Lõhmus, K. Schiemann, A. Borg Barthet, M. Ilesic, J. Malenovsky and J. Klucka
Advocate General M. Poiares Maduro
(Opinion November 29, 2007)
Judgment July 1, 2008

There was no principle that the Council of the European Union was entitled automatically to refuse access to opinions of its legal service relating to a legislative process.

The Grand Chamber of the Court of Justice of the European Communities so held when allowing appeals by the Kingdom of Sweden and Mr Maurizio Turco from the judgment of the Court of First Instance of the European Communities in Case T-84/03Turco v Council of the European Union ([2004] ECR II-4061).

Mr Turco submitted a request to the Council for access to 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.

By decision of December 19, 2002, the Council refused the request, on the basis of the second indent of article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of May 30, 2001, regarding public access to European Parliament, Council and Commission documents (OJ 2001 L145/43).

Mr Turco’s action for annulment of that decision was dismissed by the Court of First Instance, and the Kingdom of Sweden, an intervener at first instance, and Mr Turco appealed.

Recital 1 in the preamble to Regulation 1049/2001 states: “The second paragraph of article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.”

Recital 2 states: “Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights...”

Article 4 provides: “(2) The institutions shall refuse access to a document where disclosure would undermine the protection of: ... court proceedings and legal advice ... unless there is an overriding public interest in disclosure.”

In its judgment the Grand Chamber held: When asked to disclose a document, the Council had to assess, in each individual case, whether the document fell within one of the exceptions in article 4.

Where a document concerning legal advice was concerned, the Council had to carry out an examination comprising three stages: First, it had to satisfy itself that the document, or parts of it, did indeed relate to legal advice, the heading of the document not being conclusive in that regard.

Second, it had to verify that the document or parts would undermine the protection of the advice: the risk of such undermining had to be reasonably foreseeable and not merely hypothetical.

Neither the regulation nor the travaux préparatoires threw any light on the meaning of “protection” of legal advice.

It would be held that the legal advice exception was aimed at the protection of an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice.

Third, if it concluded that there was such a risk, the Council had to ascertain whether there was an overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would thereby be undermined.

In that respect, it was for the Council to balance the particular interest to be protected by nondisclosure against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble, from increased openness, in that that enabled citizens to participate more closely in the decision-making process and guaranteed that the administration enjoyed greater legitimacy and was more effective and accountable to the citizen in a democratic system.

Those considerations were clearly of particular relevance where the Council was acting in its legislative capacity.

The Council had to state its reasons for any refusal decision based on an article 4 exception.

In that regard, while was in principle open to the Council to base its decisions on general presumptions which applied to certain categories of documents, as considerations of a generally similar kind were likely to apply to requests for disclosure relating to documents of the same nature, 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.

The Court of First Instance erred in holding that there was a general need for confiden-tiality in respect of advice from the Council’s legal service relating to legislative matters.

The Council’s two arguments in that regard could not be accepted.

First, as to its fear 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 was precisely openness in that regard that contributed 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 was in fact rather a lack of information and debate which was capable of giving rise to doubts in the minds of citizens, not only as to the lawfulness of an isolated act, but also as to the legitimacy of the decision-making process as a whole.

In relation to the second argument, concerned the independence of its legal service, the Council had not put forward any detailed arguments substantiating that there was a reasonably foreseeable and not purely hypothetical risk of the Council’s interest in receiving frank, objective and comprehensive advice being undermined.

There appeared in fact to be no such real risk.

It followed from those considerations that the regulation imposed, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process.

That did not preclude a refusal to disclose a particular legal opinion, given in the context of a legislative process, on the ground that for example it was of a particularly sensitive nature or had a particularly wide scope going beyond the context of the legislative process in question; but in such a case, the institution had to give a detailed statement of reasons for the refusal.

The Court of First Instance also erred in holding that the principles underlying the regulation could not be regarded as an overriding public interest, in the meaning of article 4(2).

On those grounds, the Court set aside the judgment of the Court of First Instance and annulled the Council’s decision of December 19, 2002.