The ten applicants are Danish citizens who, in 1993, brought an action challenging the Danish Prime Minister's right to ratify the Treaty on European Union on the ground that accession was contrary to the Danish Constitution. The case is pending before the Danish Højesteret.

In the course of the proceedings before the Højesteret, the applicants requested the Council of the European Union to grant them access to certain documents in its possession. By decision of 3 November 1997 the Council transmitted the documents asked for, with the sole exception of those setting out the views expressed by the Legal Services of the Council and the Commission. In justifying its refusal to release those documents, the Council stated that in accordance with long-standing practice those views would not be communicated, on the ground that disclosure of the opinions of the Legal Service on issues being dealt with in the Council could be detrimental to the public interest in the maintenance of legal certainty and the stability of Community law, and also to the public interest in the Council's being able to obtain independent legal advice.

The ten Danish citizens then brought an action against the Council before the Court of First Instance of the EC on 23 December 1997, seeking the annulment of the Council's decision in so far as it refused to release documents from the Legal Services of the Council and the Commission.

On 6 January 1998 they applied for interim relief in the form of an injunction ordering the Council to release those documents to the Højesteret and the parties in the case pending before that court.

The President of the Court of First Instance of the EC has today dismissed that application for interim relief.

In order for such an application to be granted it must satisfy a number of conditions. Amongst other things, it must set out the pleas of fact and law establishing a prima facie case for the interim measure applied for.

The applicants claimed that the reasons given for the contested decision were generic in nature and consequently insufficient. In response to that submission, the President noted that the Council was refusing to grant access to the two documents because they were opinions from the Legal Services of the Community institutions. The fact that the Council had not examined the specific content of each document was not, taken alone, prima facie such as to render the statement of reasons inadequate. Moreover, in view of the nature of the documents which the Council had refused to release, the reasons given for the decision were prima facie sufficiently clear and consequently in no way prevented the applicants from challenging or the President of the Court of First Instance from reviewing the legality of the contested decision.

In addition the applicants claim that the exclusion of legal opinions constituted a breach both of the 1993 Code of Conduct of the Council and the Commission on public access to documents of those two institutions and of Council Decision 93/731/EC on public access to Council documents. In response to that submission, the President pointed out that the opinions of the Legal Services are documents which are primarily intended to provide the institution called upon to adopt a measure with an opinion on legal issues. If documents of that nature were divulged, the discussions and exchange of views within the institution as to the legality and scope of the legal measure to be adopted would be made public. As a result the Council might lose all interest in requesting the Legal Services for written opinions. In other words, it appeared, at least on an initial examination, that disclosure of those documents could give rise to uncertainty with regard to the legality of Community measures and have a negative effect on the functioning of the Community institutions. The stability of the Community legal order and the proper functioning of the institutions, which are matters of public interest for which it is unquestionably necessary to have due regard, would suffer as a result. Consequently, given the special nature of the category to which the two documents in question belong, it prima facie appeared that the grounds put forward by the Council had to be regarded as legitimate as regards both the letter and the spirit of the provisions relied upon by the applicants.

This press release is an unofficial document for media use which does not bind the Court of First Instance. It is available in all the official languages.

For the full text of the order in French or Danish,or for further information, please contact Tom Kennedy tel: (00352) 4303-3355 fax: (00352) 4303 2731