OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 13 February 2014 (1)
Case C‑350/12 P
Council of the European Union
v
Sophie in ’t Veld
(Appeal – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Exceptions – International relations – Legal advice – Opinion of the Council’s Legal Service concerning the opening of international negotiations between the European Union and the United States of America for an international agreement making available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing – Refusal of full access)
1. This appeal concerns the interpretation of two of the exceptions to the principle that any EU citizen has a right of access to documents of the institutions under Regulation (EC) No 1049/2001. (2) In the present proceedings the Council appeals against a judgment of the General Court (3) annulling in part the Council’s decision of 23 October 2009 (‘the contested decision’) refusing Ms Sophie in ’t Veld’s request seeking access to an opinion of the Council’s Legal Service concerning a recommendation from the Commission to the Council authorising the opening of negotiations between the European Union and the United States of America for an international agreement making available to the US Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing (‘document 11897/09’). (4) The exceptions invoked by the Council were that disclosure would undermine protection of the public interest as regards international relations and that legal advice from the Council’s Legal Service given in that context was a protected document.
2. The two principal issues raised in the present proceedings are whether in reviewing that decision the General Court applied the correct standard of review and whether, in considering that part of the Council’s decision refusing access on the grounds that disclosure would undermine the public interest as regards protection of legal advice, the General Court erred in treating the negotiation and conclusion of an international agreement as analogous to an institution’s legislative activities, thus wrongly applying the judgment of the Court in Turco. (5)
EU law
The Treaties
3. The principle of transparency is firmly established in EU law. At the time of the contested decision Article 1 TEU already referred to decisions being taken ‘as openly as possible’. (6)
4. Article 8 of the Charter of Fundamental Rights (7) provides that everyone has the right to the protection of personal data concerning him or herself. Article 42 of the Charter states that any EU citizen has a right of access to documents of the institutions.
The Regulation
5. The following recitals in the preamble to the Regulation are relevant:
‘(1) The second subparagraph 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.
(2) 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 as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
…
(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.
...
(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.
(7) In accordance with Articles 28(1) and 41(1) of the EU Treaty, the right of access also applies to documents relating to the common foreign and security policy and to police and judicial cooperation in criminal matters. Each institution should respect its security rules.
…
(11) In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks. In assessing the exceptions, the institutions should take account of the principles in Community legislation concerning the protection of personal data, in all areas of Union activities.
...’
6. The purpose of the Regulation includes defining ‘the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as “the institutions”) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents’. (8)
7. Article 2 of the Regulation is entitled ‘Beneficiaries and scope’ and provides, inter alia:
‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.
…
3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.
…’
8. Exceptions to the right of access to documents held by the institutions are laid down in Article 4 of the Regulation, which provides, in so far as is relevant to the present matter (Article 4(1)(a), third indent, and Article 4(2), second indent):
‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a) the public interest as regards:
…
– international relations,
…
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.’
9. Article 4(6) provides that if only parts of the requested document are covered by any of the exceptions, the remaining parts shall be released.
The contested decision and its background
10. Paragraphs 1 to 8 of the judgment under appeal set out a full explanation of the background to the contested decision.
11. Ms Sophie in ’t Veld, a Member of the Parliament, requested access to document 11897/09. Following the procedures laid down in the Regulation, the Council informed Ms in ’t Veld that it would allow partial disclosure, but refused full access to that document, invoking the exceptions laid down in Article 4(1)(a), third indent, and Article 4(2), second indent, of the Regulation.
12. First, the Council stated, that ‘disclosure of [document 11897/09] would reveal to the public information relating to certain provisions in the proposed Agreement … and, consequently, would negatively impact on the [European Union]’s negotiating position and would also damage the climate of confidence in the on-going negotiations’. The Council added that ‘disclosure of the document would also reveal to the [European Union’s negotiating] counterpart elements pertaining to the position to be taken by the [European Union] in the negotiations which – in the case [where] the legal advice was critical – could be exploited so as to weaken the [European Union]’s negotiating position’ (paragraph 6 of the contested decision).
13. Second, the Council stated that document 11897/09 contained ‘legal advice, where the Legal Service analyses the legal basis and the respective competences of the [European Union] and the European Community to conclude the Agreement’ and that that ‘sensitive issue, which has an impact on the powers of the European Parliament in the conclusion of the Agreement, has been [the] subject of divergent positions between the institutions’. In those circumstances, ‘[d]ivulgation of the contents of the requested document would undermine the protection of legal advice, since it would make known to the public an internal opinion of the Legal Service, intended only for the members of the Council within the context of the Council’s preliminary discussions on the proposed Agreement’ (paragraph 10 of the contested decision). Furthermore, the Council ‘concluded that the protection of its internal legal advice relating to a draft international Agreement … outweighs the public interest in disclosure’ (paragraph 15 of the contested decision).
14. Finally, pursuant to Article 4(6) of the Regulation, the Council granted ‘partial access … to the introductory part on page 1, paragraphs 1-4 and the first sentence of paragraph 5 of the document which [were] not covered by any exceptions under Regulation [No 1049/2001]’ (paragraph 16 of the contested decision). (9)
Procedure before the General Court and the judgment under appeal
15. On 31 December 2009 Ms in ’t Veld brought proceedings seeking annulment of the contested decision and her costs. The European Commission intervened in those proceedings in support of the Council, claiming that the action should be dismissed. Pursuant to an order of the General Court, the Council produced document 11897/09 for inspection. The document was not disclosed to Ms in ’t Veld or to the Commission.
16. The General Court ruled that the contested decision should be partially annulled in so far as it refused access – contrary to Article 4(1)(a), third indent, Article 4(2), second indent, and Article 4(6) of the Regulation – to the undisclosed parts of the requested document other than those concerning the specific content of the proposed agreement or the negotiating directives which could reveal the strategic objectives pursued by the European Union in the negotiations. (10)
17. The General Court set out the framework of its approach in paragraphs 17 to 22 of the judgment under appeal. First, the Regulation is intended to give the fullest possible effect to the right of public access to documents of the institutions. Second, the exceptions laid down in Article 4 of the Regulation derogate from that principle; they must therefore be interpreted and applied strictly. In that regard, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception; and the risk that a protected interest will be undermined must be reasonably foreseeable and not purely hypothetical.
18. As regards the scope of its review, the General Court stated that the decision to be adopted by an institution pursuant to that provision is of a complex and delicate nature and calls for the exercise of particular care, having regard in particular to the singularly sensitive and essential nature of the protected interest: ‘Since such a decision calls for a wide margin of discretion, the General Court’s review of its legality must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers’. (11) The General Court went on to state: ‘… it must be ascertained whether the Council has shown that access to the undisclosed elements of document 11897/09 could have specifically and actually undermined the public interest concerned’. (12)
The appeal and the procedure before the Court of Justice
19. The Council asks the Court to:
– set aside the judgment under appeal;
– give final judgment on the matters raised in its appeal; and
– order Ms in ’t Veld to pay the Council’s costs arising from the present appeal.
20. The Council contends that the General Court erred in law in its construction of the exceptions in Article 4 of the Regulation. It advances two grounds in support of its appeal, concerning, respectively the interpretation of (i) Article 4(1)(a), third indent, and (ii) Article 4(2), second indent, of the Regulation.
21. The Commission supports the Council, claiming that the General Court failed to take account of the particularly sensitive nature of the subject matter dealt with in document 11897/09.
22. The Parliament intervened in the proceedings before the Court in support of Ms in ’t Veld.
First ground: misinterpretation of Article 4(1)(a) of the Regulation
23. In support of the first ground the Council submits that two errors of law were made: (i) it is wrong that a disagreement as to the choice of legal basis cannot undermine the European Union’s international interests (first part of the first ground) and (ii) the wrong standard of review was applied (second part of the first ground).
Part 1: the choice of legal basis
24. The General Court began by pointing out that document 11897/09 is capable of falling within the Council’s area of activity in conducting international relations. (13) After examining the document, it ruled that the Council could lawfully invoke the risk of a threat to the public interest for the purposes of the exception in Article 4(1)(a), third indent, in order to refuse the disclosure of certain passages which would reveal the specific content of the proposed agreement or the negotiating directives. (14)
25. The General Court then considered whether the passages analysing the legal basis of the proposed agreement should be disclosed and made the following assessments. First, contrary to the claims of the Council and the Commission, the risk of disclosing positions taken within the institutions regarding the legal basis for concluding a future agreement does not in itself establish the existence of a threat to the European Union’s interest in the field of international relations. Second, the choice of the appropriate legal basis, both for internal and international EU activity, has constitutional significance. Since the European Union has only conferred powers, it must necessarily link the measure which it wishes to adopt to a provision of the Treaty which empowers it to approve such a measure. Third, the choice of the legal basis for a measure, including one adopted in order to conclude an international agreement, does not follow merely from the conviction of its author, but must rest on objective factors which are amenable to judicial review, such as, in particular, the aim and the content of the measure. Fourth, since the choice of the legal basis rests on objective factors and does not fall within the discretion of the institution, any divergence of opinions on that subject cannot be equated with a difference of opinion between the institutions as to matters which relate to the substance of the agreement. Finally, the mere fear of disclosing a disagreement within the institutions regarding the legal basis of a decision authorising the opening of negotiations on behalf of the European Union is not sufficient to conclude that the protected public interest in the field of international relations may be undermined.
26. The General Court went on to reject (15) the Commission’s argument that disclosing a divergence of views as to legal basis risked undermining the European Union’s credibility during the negotiations, stating that in any event if there were a disagreement between the institutions on that issue, recourse could be had to the procedure under Article 300(6) EC. (16)
27. The General Court also observed (17) that the difference of opinion regarding the legal basis of the proposed agreement was already in the public domain since it had been mentioned in the Parliament’s resolution of 17 September 2009. (18)
28. The General Court concluded (19) that Ms in ’t Veld’s first plea should succeed in part because the Council had failed to establish the risk of a threat to the public interest as regards international relations concerning the undisclosed parts of document 11897/09 relating to the legal basis of the proposed agreement.
29. The Council submits that the General Court erred in law by ignoring the principle in the Court’s case-law that a dispute relating to legal basis undermines the European Union’s negotiating position when the latter is in the process of concluding an international agreement. The Council makes the following criticisms of the judgment under appeal: (i) the issue of legal basis is not a purely technical matter of no political significance; (ii) the Court’s judgment in ERTA (20) and subsequent case-law clearly demonstrate the relevance of legal basis to the conduct of the European Union’s external relations; (iii) the reference to the procedure under Article 300(6) EC is irrelevant because none of the institutions involved used that procedure. Furthermore, (iv) document 11897/09 was not lawfully in the public domain as the Council had not agreed to its release; therefore there was no need to take that aspect into account.
30. The Commission adds that the General Court was wrong to ignore the highly sensitive nature of document 11897/09 as well as the adverse consequences for the ongoing negotiations flowing from disclosure. Furthermore, the existence of differences of opinion regarding legal basis does not necessarily mean that there are no differences of opinion on the substance.
31. Ms in ’t Veld contends that the Council’s first ground of appeal is ineffective or alternatively unfounded. Essentially she submits that the Council has misread the judgment under appeal. Disclosure of disagreement regarding legal basis, which is a purely technical matter, cannot in any circumstances undermine the protection of the public interest for the purposes of international relations.
32. The Parliament likewise considers that the Council has misread the judgment under appeal. However, unlike Ms in ’t Veld, it accepts that disclosure of a disagreement regarding legal basis could undermine the public interest, but argues that that was not the case here. Whether such disclosure is or is not covered by the exception invoked by the Council should be assessed on a case-by-case basis.
33. I disagree with the Council (and, in part, with the Commission).
34. In paragraph 50 of the judgment under appeal, the General Court stated that: ‘… the mere fear of disclosing a disagreement within the institutions … is not a sufficient basis for concluding that the protected public interest in the field of international relations may be undermined …’. The General Court did not go as far as stating that disclosure of an inter-institutional difference of opinion regarding legal basis can never undermine protection of the public interest for the purposes of Article 4(1)(a) of the Regulation. Rather, it held that whilst the Council had demonstrated a fear of disclosure, it had not shown how granting access to document 11897/09 would undermine the protection of the public interest; and thus how the condition for applying the exception in the Regulation was met. In reaching that conclusion, the General Court took into account that the question of legal basis is not a matter within the discretion of the institutions (it is determined by the Treaties according to factors amenable to judicial review); that the Treaty provided a procedure for resolving disputes; and that the difference of views regarding legal basis was already in the public domain.
35. That assessment does not disclose an error of law in the General Court’s reasoning.
36. First, legal basis is indeed determined by legal rules empowering the relevant institution to act. It is not a matter that falls within the discretion of the institution concerned nor (legally speaking) is its political significance relevant per se.
37. Second, I disagree with the Council’s submissions concerning ERTA and how that judgment applies to the present proceedings. The dispute there between the Council and the Commission concerning legal basis related to whether conclusion of the agreement in question was a matter of (then) Community competence or inter-governmental competence. The Court found that the negotiations were characterised by the fact that their origin and a considerable part of the work carried out lay with the Community. Thus, when the Council adopted its negotiating position it no longer enjoyed complete freedom of action in its relations with the third countries taking part in the negotiations. (21) The Court held that to have suggested at that stage of the negotiations to the third countries concerned that there was now a new distribution of powers within the Community might well have jeopardised the successful outcome of the negotiations, as was indeed recognised by the Commission’s representative in the course of the Council’s deliberations. (22) I discern no general rule in that judgment that disclosing a difference in view regarding legal basis invariably undermines the European Union’s interests in international negotiations. The Council has not advanced material to suggest that the circumstances of the dispute relating to legal basis examined in document 11897/09 are the same (or even similar) to those forming the background to ERTA. Furthermore, ERTA self-evidently did not, in 1971, address the issue that arises here of whether disclosure of such a disagreement damages the public interest as regards international relations for the purposes of the exception in Regulation No 1049/2001.
38. Nor do I accept that such a general rule is to be derived from Opinions 1/75 (23) and 2/94. (24) Rather the Court explained in the latter Opinion that a possible decision to the effect that an international agreement is, by reason either of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaty could not fail to provoke, not only in an EU context but also in the sphere of international relations, serious difficulties and might give rise to adverse consequences for all interested parties including third countries. (25) The Court went on to explain that the purpose of the procedure for obtaining the Court’s prior opinion is to avoid such a situation. (26) (Thus, I read the General Court’s reference to that procedure in the judgment under appeal as being purely illustrative. It did not suggest that any institution had invoked that procedure here.)
39. As regards the Commission’s concerns, I agree with the General Court that it does not necessarily follow from the existence of disagreements on legal basis that the principle of unity in external representation is undermined in the same way as might be the case when there are disagreements on substance. Nor did the General Court suggest that a difference of view concerning legal basis necessarily means that there are no differences of opinion on substantive matters. Had it done so, I would agree with the Commission that such a position would have been erroneous.
40. Accordingly, the General Court did not err in law in deciding that there is no general rule that a dispute regarding legal basis of itself undermines protection of the public interest regarding international relations.
41. Third, in its examination of the contested decision the General Court could not sensibly have ignored the fact that key content of document 11897/09 was already in the public domain before the contested decision had been adopted. True it is that the Council had not agreed to disclosure of key content publication of document 11897/09 by the Parliament. (27) Nevertheless, the General Court was bound logically to consider how a risk for the purposes of Article 4(1)(a) of the Regulation could arise where the information concerning the disagreement on legal basis was already in fact in the public domain. The General Court was therefore correct to consider that the fact that key content of document 11897/09 had already been disclosed in a resolution of the Parliament was a relevant factor that the Council should have taken into account in its assessment of Ms in ’t Veld’s request.
42. Accordingly, I consider the first part of the first ground of appeal to be unfounded.
Part 2: the standard of review
43. The Council claims that in reviewing the contested decision the General Court applied the wrong test. The Council describes the test that was applied as the ‘actual and specific prejudice’ standard of review and submits that the General Court should instead have applied the ‘wide discretion’ or ‘marginal review’ standard. The Council submits that the actual and specific prejudice test applies to the statement of reasons, but that the General Court erred by stating in paragraph 58 of its judgment that the Council should apply the ‘actual and specific prejudice’ test when assessing requests for disclosure under Article 4(1)(a) of the Regulation.
44. I disagree with the Council.
45. It seems to me that when the EU Courts review the institutions’ decisions concerning requests for access to documents made under the Regulation that review cannot be limited in the manner that the Council suggests. The courts may be called upon to adjudicate on such decisions in a number of different ways, in particular: (i) in the light of the meaning of the exceptions in Article 4 of the Regulation; (ii) by determining the legal standard of review; and (iii) by reviewing the institution’s assessment (contained in the reasoning of its subsequent decision) of whether there is an overriding public interest in disclosure in instances where the exceptions in Article 4(2) (or (3)) of the Regulation have been invoked.
46. Next, the General Court did not express the test that it applies in the judgment under appeal in the way that the Council describes. In paragraph 58 of the judgment under appeal, it states: ‘… the Council has not shown how, specifically and actually, [(28)] wider access to that document would have undermined the public interest in the field of international relations …’. In its assessment the General Court did not go so far as requiring the Council to show actual prejudice. Rather, it examined whether the Council had demonstrated specifically and actually how granting access to document 11897/09 gave rise to a risk that the protection of the public interest as regards international relations would be undermined. In that respect, the Council has simply misread the General Court’s judgment.
47. It is settled case-law that because the exceptions in Article 4 of the Regulation derogate from the principle that the widest possible public access should be given to documents held by the institutions, those exceptions must be interpreted and applied strictly. (29) Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must in principle explain how disclosure of that document could specifically and effectively (30) undermine the interest protected by whichever of the exceptions in Article 4 of the Regulation it is invoking. Moreover, the risk of undermining that interest must be reasonably foreseeable and not purely hypothetical. (31) Those principles apply to all of the exceptions in Article 4.
48. The General Court duly followed that approach. It interpreted Article 4(1)(a) of the Regulation as meaning that the Council must explain how access to document 11897/09 specifically and actually undermined the protected interest invoked, since it is not sufficient that document 11897/09 falls within the category of international relations for the exception to apply. Accordingly, the General Court verified whether the Council’s claim in refusing access to document 11897/09 was plausible. That accords with the requirement, in Article 4(1)(a) of the Regulation, that the institution invoking an exception must demonstrate why it considered that there is a risk to the protection of the public interest in any particular case. The General Court therefore did not err in examining whether the Council had shown that access to document 11897/09 could have specifically and actually (or specifically and effectively) undermined protection of the public interest for the purposes of the international relations exception in Article 4(1)(a), third indent.
49. As I read paragraphs 46 to 59 of the judgment under appeal, the General Court there considered that the Council failed to establish a plausible claim that access to document 11897/09 would undermine protection of the public interest as regards international relations for two reasons: (i) the Council had assumed that there is a general rule that disputes regarding legal basis should not be disclosed because they undermine the unity of negotiations; and (ii) the Council had failed to take account of the fact that key content of document 11897/09 was already in the public domain.
50. As the Council indeed accepts, the General Court cites the correct test in paragraph 25 of its judgment where it refers to the institution’s wide discretion in applying the general criteria of undermining the public interest as regards international relations in Article 4 of the Regulation and the Court’s judgment in Sison. (32) The Council’s reasoning in the contested decision therefore failed to satisfy what a correct reading of Article 4(1)(a) of the Regulation required. The General Court there explicitly recognised not only that the Council enjoys a wide discretion but that the scope of its own review is limited.
51. In determining Ms in ’t Veld’s plea at first instance alleging infringement of Article 4(1)(a), third indent, of the Regulation, the General Court did not identify which of the four elements mentioned in Sison formed the precise basis for its decision: (i) failure to comply with the procedural rules; (ii) failure to comply with the duty to state reasons; (iii) whether there has been a manifest error of assessment; or (iv) whether there has been a misuse of powers. (33) Rather, the General Court focussed on the interpretation of Article 4(1)(a) of the Regulation and concluded that the Council had failed to show how protection of the public interest would be undermined. (34) The General Court did not go so far as to substitute its own assessment of the contested decision for that of the Council – it did not state that there was no risk to the protection of the public interest. In my view, that assessment is essentially consistent with Sison.
52. I therefore consider that the first ground of appeal is unfounded.
Second ground: misinterpretation of the second indent of Article 4(2)
53. There are two parts to the second ground of appeal. First, the Council argues that the General Court failed to consider both the sensitive content of the legal advice and the specific circumstances applying to Ms in ’t Veld’s request for access and applied the wrong standard of review. Second, the Council submits that when considering the overriding public interest test (in the second subparagraph of Article 4(2)), the General Court erred in assimilating the negotiation and conclusion of an international agreement to the institution’s legislative activities.
54. In the judgment under appeal, the General Court first set out the ‘Turco test’:
‘Firstly, the Council must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice and, if so, it must decide what parts of it are actually concerned and may, therefore, come within that exception. Secondly, the Council must examine whether disclosure of the parts of the document identified as relating to legal advice would undermine the protection of that advice. Thirdly, if the Council takes the view that disclosure would undermine the protection of legal advice, it must ascertain whether there is any overriding public interest justifying disclosure, notwithstanding the fact that its ability to seek and receive frank, objective and comprehensive advice would thereby be undermined ...’ (35)
55. The General Court held that document 11897/09 did indeed relate to legal advice (the first stage of the Turco test). Next, the General Court emphasised that any risk of undermining the protection of legal advice must be reasonably foreseeable and not purely hypothetical (the second stage of the Turco test). The General Court considered that the Council’s grounds for refusing access to document 11897/09 were not sufficient to establish the existence of such a risk by any specific, detailed evidence. The mere fact that the legal advice contained in document 11897/09 concerned the European Union’s international relations was not in itself sufficient to trigger the exception laid down in Article 4(2), second indent, of the Regulation. The fact that the legal advice set out in document 11897/09 concerned international relations had already been taken into account in relation to the exception in Article 4(1)(a), third indent. None the less, the General Court accepted that enhanced protection should be afforded where such negotiations are ongoing. (36)
56. The General Court held that the Council could not rely on general considerations that, in a sensitive area, a threat to the protected public interest could be presumed and would suffice to demonstrate the existence of the interest protected by Article 4(2) of the Regulation. Nor might a specific and foreseeable threat to that interest for the purposes of Article 4(2) be established merely by claiming a fear of disclosing to EU citizens differences of opinion between the institutions regarding the legal basis for the international activity of the European Union (and thus of creating doubts as to the lawfulness of that activity). Openness confers greater legitimacy on the institutions in the eyes of EU citizens and increases their confidence in those institutions by allowing public debate. That principle also applies to the international activity of the European Union, because the decision-making process in that area is not exempt from the application of the principle of transparency. (37)
57. The General Court went on to dismiss the submission that there could be a threat to the ability of the Council’s Legal Service to defend, in court proceedings, a position on which it had issued a negative opinion. (38) Furthermore, the General Court found that the Council was not justified in failing to produce more material merely because the content of document 11897/09 was sensitive. (39)
58. The General Court pointed out that it was for the Council to balance the particular interest to be protected by non-disclosure of the document in question against any overriding public interest justifying such disclosure (the third stage of the Turco test). In that respect the Council must take particular account of the public interest in document 11897/09 being made accessible in the light of the advantages stemming from increased transparency: enabling citizens to participate more closely in the decision-making process, guaranteeing the administration greater legitimacy and improving accountability to the citizen in a democratic system. (40)
59. The General Court accepted that those considerations are clearly of particular relevance where the Council is acting in its legislative capacity. It acknowledged that initiating and conducting negotiations in order to conclude an international agreement falls, in principle, within the domain of the executive. The General Court also accepted that public participation in the procedure relating to the negotiation and conclusion of an international agreement is necessarily restricted, in view of the legitimate interest in not revealing strategic elements of the negotiations. (41)
60. The General Court nevertheless concluded that, notwithstanding that the Council was not acting in its legislative capacity, application of the considerations connected with the principle of the transparency of the European Union’s decision-making could not be ruled out in international affairs, especially where a decision authorising the opening of negotiations involved an international agreement which might have an impact on an area of the European Union’s legislative activity. The General Court noted that the proposed agreement concerned the protection of personal data, which is a fundamental right. Accordingly, the Council was obliged to take into account the area affected by the agreement in question by establishing, in accordance with the principle of the widest possible public access to documents, whether the general interest connected with a greater transparency in the procedure in question justified the full – or fuller – disclosure of the requested document, despite the risk that the protection of legal advice might be undermined. (42)
61. The General Court accepted that there was an overriding public interest in the disclosure of document 11897/09, since it would contribute to conferring greater legitimacy on the institutions and would increase EU citizens’ confidence in those institutions by making it possible to have an open debate on the points where there was a divergence of opinion. Moreover, the document in question discussed the legal basis of an agreement which, once concluded, would have an impact on the fundamental right to the protection of personal data. The General Court therefore held that, by excluding any possibility of taking into account the subject-matter affected by the proposed agreement in determining whether there was an overriding public interest in the disclosure of the requested document, the Council had failed to weigh the opposing interests when applying the exception provided for in Article 4(2), second indent, of the Regulation. (43)
62. The General Court then turned to the Commission’s submissions: (i) that the same level of transparency as that applying to an institution’s legislative activities is not required for actions concerning international relations, which are the subject of a mandatory exception in Article 4(1)(a) of the Regulation; and (ii) that document 11897/09 was particularly sensitive because of its subject matter and because the negotiations were still pending. The General Court found those arguments unconvincing.
63. First, the fact that the document in question concerned an area potentially covered by the exception (in Article 4(1)(a), third indent), relating to the protection of the public interest in the field of international relations was irrelevant for the purposes of assessing the application of the separate exception (in Article 4(2), second indent) relating to the protection of legal advice. Second, the fact that the negotiations were still ongoing was not conclusive in ascertaining whether, despite that risk, there was any overriding public interest justifying disclosure. If the public interest in the transparency of the process were to be taken into account only once that decision-making process had come to an end, it would become meaningless. (44)
Part 1: failure to consider the specific subject matter of the legal advice and application of the wrong standard of review
64. The Council submits that the General Court erred in law by (i) failing to accord weight to the fact that the legal advice concerned the ongoing negotiation of an international agreement; (ii) applying a standard of review requiring the Council to establish specific and actual harm and to show specific detailed evidence of such harm; and (iii) failing to take into account the particular circumstances applying to Ms in’t Veld’s request.
65. The second point raises an important issue as to whether the standard of review laid down by the Court in Turco should apply when assessing requests for access to legal advice of the Council concerning ongoing international relations. I shall therefore consider that point before dealing, more briefly, with the first and third points.
66. Both the Council and the Commission submit that the Turco test should not apply, since the legal advice was not delivered in the context of a legislative activity. Furthermore, the Council argues that in Turco there is no reference to a test of specific and actual harm. Accordingly the General Court erred in applying that test.
67. Ms in ’t Veld submits that the General Court did not commit an error of law in applying the Turco test. The reference to ‘specific and actual’ made by the Council in its appeal (45) relates to a translation mistake in the English text of the judgment under appeal: in the French version the test is cited correctly as ‘… que la divulgation du document soit de nature à porter concrètement et effectivement atteinte à l’intérêt de l’institution …’. (46) The Parliament supports her position.
68. I consider that the use of the wording ‘… could have specifically and actually undermined the public interest concerned …’ in paragraph 69 of the English text of the General Court’s judgment should not be regarded as significant. That expression means the same as the words ‘specifically and effectively’ in paragraph 49 of the Turco judgment (as I have earlier explained in point 47 and footnote 30 above). Furthermore, the General Court did not use the words ‘specific and actual harm’ (emphasis added) as suggested by the Council in its appeal. In paragraph 69 of its judgment, the General Court refers instead to a ‘… risk that disclosure … could specifically and actually undermine an institution’s interest in seeking and receiving frank, objective and comprehensive advice …’ (emphasis added). That is not the same as requiring an institution to demonstrate ‘harm’. I therefore consider that the General Court applied the correct test and that it did not misconstrue the Court’s judgment in Turco.
69. Should the three-stage Turco test apply to a request for disclosure of a document containing legal advice concerning ongoing international relations?
70. My view is that it should.
71. It is true that the Court stated in Turco that the three stages that it had identified were of ‘particular relevance’ where the Council acts in a legislative capacity. (47) However, the three stages themselves are framed in terms that are of general application, thus not excluding the possibility that they may apply to other institutional activities.
72. The three stages of the Turco test are derived directly from the actual wording of Article 4(2) of the Regulation. It follows in my view that they should therefore be applied whenever an institution invokes the second indent of that article. The text of that provision makes no mention of whether the context in which access to a document is sought is ‘legislative’. For my part, I see no cogent reason why that should be a determinative criterion. (48)
73. I add that, whilst it is generally possible to distinguish legislative acts from other acts, all institutional activities are not necessarily amenable to such neat and precise classification. Executive acts cover a wide range of different activities, including the negotiation and conclusion of international agreements. Where such activities concern matters that have an impact on EU citizens – in particular where they concern those citizens’ fundamental rights – openness is an important part of the decision-making process. Transparency strengthens democracy allowing citizens to be informed and to participate in decision making. (49) In that respect, the considerations that apply to legislative acts are equally relevant to executive activities. That makes it difficult to justify applying a different standard of review to institutional acts based on how the institution’s activity should be classified in a particular instance. (50)
74. The real question here is whether it is appropriate to apply the second stage of the Turco test – verifying whether the institution concerned has established that the risks are reasonably foreseeable and not purely hypothetical – in the specific context of the negotiation and conclusion of an international agreement.
75. Since the aim of the Regulation is to give the fullest possible right of public access, the institutions should in my view be required to assess the practical effect of disclosure in each particular case. It is not sufficient for them to rely on general assertions when refusing requests for disclosure.
76. I agree with paragraphs 75 and 76 of the judgment under appeal that the starting point should be that the principle of transparency applies to decisions taken regarding international relations as it does to all other EU activity. It therefore does not automatically follow that disclosure of a difference of opinion on the legal basis will ‘undermine’ protection of the legal advice in question for the purposes of Article 4(2) of the Regulation.
77. Rather, it follows from the requirement that the risks must be ‘reasonably foreseeable’ that, where access to the document is refused, the statement of reasons must then indicate why access would ‘specifically and effectively’ undermine the protected interest.
78. The purpose of the statement of reasons is to enable the individual concerned to know why access is denied and the courts to carry out their function of review. (51) Inadequate reasoning in institutional decisions frustrates both those objectives. (52) Nothing in the wording of the Regulation suggests that a lower standard should apply where the subject matter concerns international negotiations. The possibility (recognised by the General Court in paragraph 121 of its judgment) for the institutions to describe their reasons in more abstract terms where there is a concern that by giving very detailed reasons for refusal would disclose the contents of the document that they seek to protect is a sufficient safeguard.
79. I now turn to the first and third points made by the Council, which I shall treat together. In its first point the Council criticises the General Court for failing to consider the fact that the legal advice in document 11897/09 concerned a particularly sensitive subject – the fight against terrorism and terrorist-financing. The Council submits that the General Court should have deduced that document 11897/09 therefore warranted more, not less, protection and should therefore have applied a presumption against disclosure as established elsewhere in the Court’s case-law. (53) Instead the General Court wrongly concluded that the international relations aspects of document 11897/09 had been taken into account when the exception in Article 4(1)(a), third indent, of the Regulation had been examined. The Council submits in its third point that the General Court disregarded, in this context, the sensitive subject matter of document 11897/09.
80. Ms in ’t Veld submits that the General Court did take the specific nature of the subject matter of the legal advice into account and that the Council is wrong in claiming that particular rules apply to requests for access to legal advice when they concern international relations. Instead, a high level of transparency should apply to all such documents. The Parliament adds in support that the Council failed to demonstrate how disclosure (of already publicly available information) would specifically and effectively undermine legal advice within the meaning of the Regulation. The interest concerning international relations should be considered under Article 4(1)(a), third indent. The interests protected under that provision and under Article 4(2), second indent, of the Regulation are not identical in legal terms.
81. It is true that the exceptions in Article 4(1) and (2) of the Regulation are closely connected. Accordingly, it is necessary when considering the exception relating to legal advice to bear in mind that document 11897/09 concerns international relations (specifically, negotiations relating to a sensitive subject). However, it is clear from paragraph 71 of the judgment under appeal that the General Court did take account of that fact. In paragraph 72, the General Court specifically considered the point that the negotiations were ongoing when Ms in ’t Veld requested access to document 11897/09.
82. The exception relating to legal advice laid down in Article 4(2), second indent, of the Regulation must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. (54) The institution relying upon that exception must therefore show why protection of its interest in seeking and receiving such legal advice would be undermined if access to the document in question were granted. I agree with the General Court’s assessment that the fact that document 11897/09 concerns ongoing international negotiations relating to a sensitive subject is not of itself sufficient to establish that the Council would be unable to request or to receive frank, objective and comprehensive advice from its Legal Service and that access should therefore be denied.
83. Nor do I accept that the General Court’s approach is inconsistent with the Court’s case-law. It is true that the Court has held in relation to the other exception in Article 4(2), second indent, of the Regulation (protection of court proceedings) (55) and the third indent of that provision (protection of the purpose of inspections, investigations and audits) (56) that there is a presumption against disclosure respectively in API (57) and in Technische Glaswerke. (58) However, those two judgments were based on specific reasons in each case.
84. API concerned a request to obtain access to pleadings settled by the Commission in proceedings before the EU Courts. The Court based its decision that a presumption against disclosure applies for the purposes of the protection of court proceedings on the following considerations: (i) such documents are specific and are drafted exclusively for the purposes of particular litigation; (59) (ii) the exception implies, in particular, compliance with the principles of equality of arms and ensuring the sound administration of justice; (60) (iii) disclosure of the pleadings would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the (judicial) debate; (61) and (iv) such a presumption was justified in the light of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the EU Courts. (62) The Court added that it followed from Article 15 TFEU (then Article 255 EC) and the broad logic of the Regulation that the Court is subject to obligations of transparency only when exercising its administrative tasks. (63)
85. Technische Glaswerke concerned a request for access to the Commission’s administrative file in State aid proceedings opened under Article 88(2) EC (now Article 108(2) TFEU). The Court held in particular that in procedures for reviewing State aid interested parties other than the Member State concerned do not have the right to consult the documents in the Commission’s administrative file. The Court considered that a general presumption must exist that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities in Article 4(2), third indent, of the Regulation. (64)
86. In both API and Technische Glaswerke, the Court identified specific characteristics relating both to the document concerned and to the surrounding circumstances that indicated why the protected interest invoked would necessarily always be undermined before concluding that there was a presumption against disclosure. The Court therefore proceeded on the basis that it is over-simplistic to consider that an exception under the Regulation applies merely because a document requested falls within the category identified in that exception. Once the General Court had found that the Council had not identified any specific material showing that disclosure of legal advice (here, concerning divergent views as to legal basis) would necessarily undermine it in seeking and receiving such advice, the General Court was right to conclude that there was no presumption against disclosure.
87. Finally, as regards the Council’s submission that there was a real risk of a threat to the ability of its Legal Service to defend a position on which it had issued a negative opinion in subsequent court proceedings, it is settled case-law that such an argument is too general in nature to justify an exception to the openness provided for by the Regulation. (65)
Part 2: the overriding public interest test
88. The Council submits that the General Court erred in law, first, in requiring it to balance the protection of legal advice against the general principle of transparency where it is in the process of conducting ongoing international negotiations; second, in considering that that general principle constitutes the overriding public interest; third, in requiring the same level of transparency for the Council’s international negotiations as in Turco, where the institution concerned was acting in a legislative capacity. Furthermore, the Council considers it is for the person seeking access to identify a clear and specific public interest in disclosure rather than for the Council to balance transparency, democracy and public participation against protection of legal advice.
89. The Commission has two principal concerns: (i) the General Court treated (it says) the sensitivity of the subject as irrelevant when considering the overriding public interest test; and (ii) the General Court equated the conclusion of an international agreement with an institution’s legislative activities for the purposes of applying the overriding public interest test.
90. Ms in ’t Veld submits that the Court’s ruling in Turco is not limited to the European Union’s legislative activities in the formal sense. The principle underlying the Treaty and the case-law is that citizens should know and be able to participate in discussions relating to the rules affecting their fundamental rights before such rules are adopted. The Parliament makes no submissions on the issue of the overriding public interest.
91. I agree with the Commission that the sensitivity of the subject matter covered by document 11897/09 should be taken into account. It seems to me that the General Court did precisely that in paragraphs 81 to 88 of the judgment under appeal.
92. However, I do not consider that any special significance attaches to the fact that document 11897/09 falls within the Council’s international relations activities for the purposes of Article 4(1)(a) when considering whether the exception relating to legal advice in Article 4(2), second indent, may be applied. Mandatory language is used in the opening words of both Article 4(1) and (2): ‘The institutions shall refuse access to a document where disclosure would undermine the protection of …’ The difference between the two provisions is that the exceptions in the second sub-paragraph are qualified by the overriding public interest test, whereas those in the first sub-paragraph are not; they are absolute.
93. The Regulation is silent as to whether a particular standard of review should apply to legal advice dealing with the European Union’s international relations. Nor does it indicate whether, in assessing whether there is an overriding public interest in disclosure, the subject matter of the legal advice should influence the decisions concerning access.
94. In my view, the General Court correctly interpreted Article 4(2) of the Regulation in paragraph 81 of its judgment as meaning that it is for the Council to balance the interest protected by refusing access against any public interest justifying disclosure. That interpretation is consistent with the wording of that provision, which – as I read it – places the onus on the institution concerned to make the assessment, rather than – as it could have done – explicitly requiring the applicant to establish and identify a clear and specific public interest in disclosure.
95. It is clear from paragraphs 87 and 88 of the judgment under appeal that the General Court identifies a difference between an institution’s legislative activity and its conduct of negotiations in order to conclude an international agreement, which the General Court classified as falling in principle within the executive domain. The General Court did not, therefore, commit an error of law by conflating the Council’s legislative and executive activities.
96. The general purpose of the Regulation is to ensure that citizens have the widest possible access to documents of the EU institutions. (66) The principle of transparency must thus be taken into account in determining, for the purposes of Article 4(2) of the Regulation, the balance between the exception invoked and the overriding public interest. (67)
97. Transparency is not an abstract concept; nor is it an absolute requirement. It often needs to be assessed in relation to other competing objectives. It therefore seems to me over-simplistic to say (for example) that legislative acts generically require a high level of transparency but that other institutional activities generically require less transparency. The general rule under the Regulation is that the institutions should ensure the widest possible access to their documents. (68) While I acknowledge the particularity of international negotiations, it does not follow automatically that less, rather than more, transparency always applies to such activities, even where the subject matter, as here, is considered to be sensitive.
98. I take the view that whether an institution is acting in a legislative, executive or administrative capacity should not be determinative. Rather, what matters is that in an individual case the institution concerned should conduct the assessment required by the Regulation carefully and objectively and should provide the necessary detailed and specific reasoning in its decision.
99. The General Court points out in paragraphs 91 to 95 of the judgment under appeal that the Council made an important omission in assessing whether there was an overriding public interest in disclosure in reaching its decision on the request for access to document 11897/09. The Council failed to take account of the fact that the subject matter of the proposed agreement concerned fundamental rights, thus justifying more (rather than less) transparency. Accordingly, the General Court concluded that the Council had failed to conduct a full assessment for the purposes of Article 4(2) of the Regulation.
100. It seems to me that the subject matter of the proposed agreement must be a relevant factor in assessing where the balance of the public interest lies. Where that subject-matter is likely to have an impact on the rights of EU citizens, in particular their fundamental rights, there is a clear public interest in disclosure. The question is then which of two competing interests is the overriding interest. Here, the issues to be balanced were, on the one hand, the impact of disclosure on the Council’s interests in seeking and receiving advice from its Legal Service and, on the other hand, the general interest in transparency (particularly where fundamental rights may be affected) (69) and the principle that openness strengthens democracy and allows EU citizens to participate in decision-making conferring greater legitimacy on the institutions. It seems to me that in the absence of a consideration of those elements, there is a failure to conduct a full assessment for the purposes of Article 4(2) of the Regulation. I therefore conclude that the second ground of appeal is unfounded.
Costs
101. In accordance with Articles 138(1) and 140(1) of the Rules of Procedure, the Council as the unsuccessful party in this appeal should pay the costs of these proceedings, while the Parliament and the Commission should each bear their own costs.
Conclusion
102. In the light of all the foregoing considerations I propose that the Court should:
– dismiss the appeal;
– order the Council to pay the costs;
– order the European Parliament and the European Commission each to bear their own costs.