JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
13 March 2024 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Opinion of the Council’s legal service regarding a proposal by the Commission concerning an amendment of Regulation (EC) No 1367/2006 and regarding advice issued by the Aarhus Committee – Partial refusal to grant access – Exception relating to the protection of legal advice – Legal opinions that are particularly sensitive in nature or have a particularly wide scope going beyond the context of the legislative process in question – Exception relating to the protection of the decision-making process – Exception relating to the protection of the public interest regarding international relations – Overriding public interest)
In Joined Cases T‑682/21 and T‑683/21,
ClientEarth AISBL, established in Ixelles (Belgium),
Päivi Leino-Sandberg, residing in Helsinki (Finland),
represented by O. Brouwer and T. van Helfteren, lawyers, and S. Gallagher, Solicitor,
applicants,
v
Council of the European Union, represented by S. Saez Moreno and A. Maceroni, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, R. Frendo (Rapporteur) and T. Perišin, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure, in particular the decision of 20 December 2022 joining Cases T‑682/21 and T‑683/21 for the purposes of the oral part of the procedure and the decision closing the proceedings,
further to the hearing on 18 January 2023,
gives the following
Judgment
1 By their actions under Article 263 TFEU, the applicants, ClientEarth AISBL and Ms Päivi Leino-Sandberg, seek annulment of the decisions contained in the letters with reference numbers SGS 21/2869 and SGS 21/2870 of the Council of the European Union of 9 August 2021, refusing them access in part to document 8721/21 (‘the contested decisions’).
Background to the dispute
2 On 17 February 2005, the Council, in the name of the European Union, decided to approve the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) on 25 June 1998 (‘the Aarhus Convention’).
3 Article 9(3) of the Aarhus Convention provides that each party must give members of the public access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4 In addition, Article 9(4) of the Aarhus Convention provides, in particular, that such appeal proceedings must provide adequate and effective remedies and be fair, equitable, timely and not prohibitively expensive.
5 In order to comply with the requirements of the Aarhus Convention, the European Union adopted Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies (OJ 2006 L 264, p. 13; ‘the Aarhus Regulation’).
6 More specifically, Article 10 of the Aarhus Regulation, entitled ‘Request for internal review of administrative acts’, provided, in paragraph 1, in the version then in force, that any non-governmental organisation (NGO) which meets the criteria set out in Article 11 of that regulation was entitled to make a request for internal review to the EU institution or body that had adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act. In addition, Article 2(1)(g) of that regulation defined an ‘administrative act’ capable of being subject to a request for internal review, as any measure of individual scope under environmental law, taken by an EU institution or body, and having legally binding and external effects.
7 On 17 March 2017, the Aarhus Convention Compliance Committee (‘the Aarhus Committee’), which was set up in order to verify compliance by the parties to that convention with the obligations arising therefrom, published Communication ACCC/C/2008/32, by which it found, inter alia, that the European Union was not in compliance with Article 9(3) and (4) of that convention regarding access to justice by members of the public and recommended that the Aarhus Regulation be amended.
8 The Aarhus Committee considered that the mechanism for internal review provided for by Article 10 of the Aarhus Regulation must not be restricted to acts of individual scope with legally binding and external effects adopted under environmental law, but that it had to be extended to all acts running counter to environmental law. In addition, the Aarhus Committee considered that the mechanism must not be open only to certain NGOs entitled to make use of it, but must also be open to ‘members of the public’.
9 On 14 October 2020, the European Commission published Proposal COM(2020) 642 final for a Regulation of the European Parliament and of the Council on amending the Aarhus Regulation (‘the Commission’s proposal’).
10 On 12 February 2021, the Aarhus Committee issued advice on the Commission’s proposal stating that, notwithstanding certain concerns that remained to be addressed, the proposal constituted a ‘significant positive development’ (‘the advice of 12 February 2021’).
11 More specifically, the Aarhus Committee repeated, inter alia, the view that the mechanism for internal review provided for by Article 10 of the Aarhus Regulation must not be open only to entitled NGOs, but that it must be open to ‘members of the public’ and must not be restricted to reviewing acts with legally binding and external effects.
12 On 11 May 2021, the Council’s legal service issued an opinion relating to the Commission’s proposal and the advice of 12 February 2021 in document 8721/21 (‘the requested document’).
13 On 20 May 2021, the applicants applied for access to the requested document under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and under the Aarhus Regulation and Article 42 of the Charter of Fundamental Rights of the European Union.
14 On 8 June 2021, the Council upheld the application in part, granting the applicants access to paragraphs 1, 3, 4 and 6 to 17 of the requested document.
15 On 29 June 2021, the applicants made confirmatory applications pursuant to Article 7(2) of Regulation No 1049/2001.
16 Following the trilogue negotiations, on 12 July 2021, the representatives of the Council and the European Parliament reached an agreement on the amendment of the Aarhus Regulation (‘the provisional agreement’).
17 On 16 July 2021, the Commission, acting on behalf of the European Union, informed the Aarhus Committee of the provisional agreement, which was subsequently endorsed by the Committee of Permanent Representatives of the Governments of the Member States to the European Union within the Council on 23 July 2021.
18 On 26 July 2021, the Aarhus Committee adopted a report on the provisional agreement, which, in essence, reiterates its observations expressed in the advice of 12 February 2021 (see paragraph 10 above), and recommended that the parties to the Aarhus Convention approve the amendment of the Aarhus Regulation, as proposed in the provisional agreement.
19 On 9 August 2021, the Council adopted the contested decisions, by which it determined the applicants’ confirmatory applications. While confirming its decision to refuse full access to the requested document, the Council granted additional partial access to paragraphs 18 to 28 of that document.
20 On 6 October 2021, the Parliament and the Council, as co-legislators, adopted Regulation (EU) 2021/1767 amending the Aarhus Regulation (OJ 2021 L 356, p. 1).
Forms of order sought
21 The applicants claim that the Court should:
– annul the contested decisions;
– order the Council to pay the costs.
22 The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
23 In support of their actions, the applicants rely, in essence, on four pleas in law. The first three pleas are based formally on errors of law:
– and of assessment in applying the exception provided for in Article 4(3) of Regulation No 1049/2001 relating to the protection of the decision-making process (first plea);
– and of assessment in applying the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of legal advice (second plea);
– and on a manifest error of assessment in applying the exception provided for in the third indent of Article 4(1)(a) of Regulation No 1049/2001 relating to the protection of the public interest as regards international relations (third plea).
24 Last, the fourth plea, raised in the alternative, alleges infringement of Article 4(6) of Regulation No 1049/2001, in that the Council failed to grant the applicant wider access to the requested document.
25 In the present case, it is appropriate to begin the analysis by examining the second plea alleging errors of law and of assessment in applying the exception relating to the protection of legal advice provided for in the second indent of Article 4(2) of Regulation No 1049/2001.
The second plea, alleging infringement of Article 4(2) of Regulation No 1049/2001
26 The applicants’ line of argument in the second plea is made up, in essence, of three parts.
27 The first part alleges that the requested document was classified incorrectly as legal advice within the meaning of Article 4(2) of Regulation No 1049/2001; the second alleges error of assessment regarding the risk of adverse effect relied on by the Council in order to justify non-disclosure of that document as legal advice; and the third alleges error of assessment regarding the overriding public interest relied on by the applicants in order to justify disclosure.
28 The Council disputes the applicants’ claims.
29 As a preliminary matter, it should be borne in mind that the second indent of Article 4(2) of Regulation No 1049/2001 provides that access to a document is to be refused where disclosure would undermine the protection of legal advice, unless there is an overriding public interest in disclosure of that document.
30 In that regard, it is settled case-law that the application of that exception requires the institution concerned to undertake an examination which must necessarily be carried out in three stages corresponding to the three criteria in the second indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 37, and of 15 September 2016, Herbert Smith Freehills v Council, T‑710/14, EU:T:2016:494, paragraph 42 and the case-law cited).
31 Accordingly, first, the institution concerned must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice and, if so, it must decide which parts of it are actually concerned and may, therefore, be covered by the exception at issue (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 38).
32 Second, it must examine whether disclosure of the parts of the document in question which have been identified as relating to legal advice would undermine the protection which must be afforded to that advice, in the sense that it would be harmful to an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 40, 42 and 43).
33 Third and last, if the institution takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on that institution to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its interest in seeking legal advice and receiving frank, objective and comprehensive advice would thereby be undermined (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 44, and of 15 September 2016, Herbert Smith Freehills v Council, T‑710/14, EU:T:2016:494, paragraph 43 and the case-law cited).
34 However, it is apparent from the case-law that there is no real risk that is reasonably foreseeable and not purely hypothetical that disclosure of opinions of the Council’s legal service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001. The regulation accordingly imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 66 and 68).
35 That finding does not, however, preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being 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 incumbent on the institution concerned to give a detailed statement of the reasons for such a refusal (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 69).
The first part of the plea, alleging that the requested document was classified incorrectly as legal advice within the meaning of Article 4(2) of Regulation No 1049/2001
36 The applicants call into question the Council’s classification of the requested document in the contested decisions, submitting that that document does not contain specific legal advice, but merely an abstract and general legal analysis drawn up in the context of a legislative procedure. In that connection, they submit that the document is entitled ‘opinion’, not ‘legal advice’. They also submit that that document is a mere general presentation of the areas of EU law underlying the Commission’s proposal and that it is not therefore liable to fall within the scope of the exception relating to the protection of legal advice.
37 It must be stated from the outset that, contrary to the applicants’ claims, footnote 1 to the requested document states expressly that it contains legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001.
38 Nevertheless, the fact that a document is headed or classified as ‘legal advice/opinion’ does not mean that it is automatically entitled to the protection of legal advice ensured by the second indent of Article 4(2) of Regulation No 1049/2001. Over and above the way a document is described, it is for the institution to satisfy itself that that document does indeed concern such advice (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 39).
39 Given that the concept of ‘legal advice’ is not defined in Regulation No 1049/2001, the case-law has established that the legal nature of a document relates to its content, not to its heading, author or addressees. As is apparent from a literal interpretation of the words ‘legal advice’, this is a question of advice relating to a legal issue, regardless of the way in which that advice is given. In other words, it is irrelevant, for the purposes of applying the exception relating to the protection of legal advice, whether the document containing that advice was provided at an early, late or final stage of the decision-making process. In the same way, the fact of the advice having been given in a formal or informal context has no effect on the interpretation of those words (see, to that effect, judgment of 15 September 2016, Herbert Smith Freehills v Council, T‑710/14, EU:T:2016:494, paragraph 48).
40 In the present case, it is common ground that the requested document is an internal Council document drawn up during the discussions relating to the legislative procedure initiated by the Commission for the purpose of amending the Aarhus Regulation.
41 It is apparent, in essence, from paragraphs 1, 3 and 4 of the requested document, to which the applicants had access, that the purpose of that document was, first, to answer a question asked by the Council Working Party on the Environment concerning the scope of the Commission’s proposal and, second, to provide an assessment of the advice of 12 February 2021, by which the Aarhus Committee had stated that several aspects of that proposal had to be amended in order to ensure full compliance of the Aarhus Regulation with the Aarhus Convention.
42 Accordingly, the analysis of the requested document shows that its content is intended to answer questions of law and, as a result, is covered by the exception relating to the protection of legal advice within the meaning of the case-law cited in paragraph 39 above.
43 As a result, the fact that the requested document contains only an abstract and general analysis of the Commission’s proposal does not deprive it of its legal nature.
44 Thus, the applicants’ argument that the requested document is not legal advice within the meaning of and for the purposes of the application of the second indent of Article 4(2) of Regulation No 1049/2001 is unfounded, so that the first part of the plea alleging error of law must be rejected as unfounded.
The second part of the plea, alleging error of assessment regarding the risk of adverse effect relied on by the Council in order to justify the non-disclosure of that document as legal advice
45 The applicants argue, in essence, that the requested document, issued in the context of a legislative process, is not particularly sensitive and does not have a particularly wide scope, so that the Council erred in assessing that its disclosure was liable to undermine the protection that must be afforded to legal advice.
46 More specifically, in the context of the first complaint, the applicants submit that the requested document is not particularly sensitive and that the Council did not establish that there is an actual, specific, reasonably foreseeable and non-hypothetical risk that would result from disclosure of that document.
47 Next, in the second complaint, they submit that the requested document does not have a particularly wide scope having regard to the legislative context in which it was adopted.
48 From the outset, given that, as set out in paragraph 41 above, the purpose of the requested document was, inter alia, to examine the scope of a proposal made by the Commission for amending a regulation, it must be stated that that document contains legal advice relating to a legislative process.
49 It is apparent from the case-law cited in paragraph 34 above that Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process.
50 Regarding, more specifically, the documents drawn up by institutions acting in a legislative capacity, recital 6 of Regulation No 1049/2001 states that wider access should be granted to such documents. According to the case-law, openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. Thus, the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46).
51 However, disclosure of the legal opinions of the institutions adopted in the context of a legislative process is not – contrary to the applicants’ claim, in essence – an absolute obligation.
52 As is apparent from the case-law referred to in paragraph 35 above, the finding that a document contains specific legal advice given in the context of a legislative process does not preclude its disclosure under the second indent of Article 4(2) of Regulation No 1049/2001 if that document is of a particularly sensitive nature or has a particularly wide scope that goes beyond the context of the legislative process in question.
53 It follows that the principle requiring disclosure of legal advice given during a legislative process is liable to be curtailed by one or the other of the two exceptions referred to in paragraph 52 above.
54 In the present case, the Council based the contested decisions, as far as the exception relating to the protection of legal advice is concerned, on the two grounds corresponding to the two exceptions set out in the case-law referred to in paragraph 52 above, that is:
– first, the particularly sensitive nature of the requested document;
– second, the particularly wide scope of that document, which goes beyond the scope of the legislative process in question.
55 The applicants argue that each of those two grounds is vitiated by an error of assessment.
– The first complaint, alleging error of assessment on account of the claim that the requested document is not particularly sensitive in nature
56 In paragraphs 33 to 36 and 41 to 44 of the contested decisions, the Council relied on the particularly sensitive nature of the legal opinion in the requested document. In support of that ground, it put forward three considerations, namely:
– first, the context in which that document had been drawn up and its content;
– second, the risk of external pressure;
– third, the fact that the issues addressed could be the subject of litigation before the EU Courts.
57 Thus, in the first place, in paragraphs 33 to 36 of the contested decisions, the Council stated that the requested document addressed highly sensitive issues in a highly sensitive context, given that the Aarhus Committee had found on 17 March 2017 that the European Union was in breach of its obligations with regard to access to justice by members of the public flowing from Article 9(3) and (4) of the Aarhus Convention.
58 In that connection, the Court observes that the document itself must be particularly sensitive in nature, not, as argued by the Council, the context of which it forms part (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 69). Thus, only an opinion which, even if it concerns an important legislative measure, contains particularly sensitive information may be recognised as sensitive, which is not the case where that opinion includes merely an assessment of elements of interpretation of EU law.
59 Even if a legal opinion, despite having been drawn up in a particularly sensitive legislative context, comprises only legal assessments that have no originality and does not contain, in addition to those assessments, sensitive information or does not refer to confidential facts, it cannot be considered that legal assessments, in themselves, must not be disclosed to the public merely because they relate, for example, to a controversial legislative initiative.
60 In the present case, it is not apparent from the examination of the content of the requested document that it contains particularly sensitive information, or that it refers to confidential facts.
61 In addition, similarly, it is not apparent from the content of the requested document that the legal opinion in question contains original analyses which go beyond a mere assessment of elements of interpretation of EU law.
62 It follows that, even in the event that the requested document did relate to a controversial initiative, the first consideration underlying the Council’s position – that the requested document is particularly sensitive in nature – cannot be endorsed.
63 In the second place, in paragraph 44 of the contested decisions, the Council stated that disclosure of the requested document would expose its legal service to external pressure which could subsequently affect how its advice is drafted and therefore prejudice the possibility of that legal service of expressing its views free from that pressure.
64 In that respect, it is apparent from the case-law that openness in the legislative process of the EU institutions contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in those institutions by allowing divergences between various points of view to be openly debated. Accordingly, mere statements relying, in a general and abstract way, on the risk of ‘external pressure’ do 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 (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 59 and 61, and of 21 April 2021, Pech v Council, T‑252/19, not published, EU:T:2021:203, paragraph 92 and the case-law cited).
65 In the present case, the Council’s mere unsupported statements regarding the possibility of ‘external pressure’ on its legal service do not make it possible to consider that disclosure of the requested document would give rise to a real risk that is reasonably foreseeable and not purely hypothetical that the independence of that service would be undermined.
66 As a result, such statements cannot establish that the requested document is particularly sensitive in nature for the purposes of the first ground underlying the contested decisions, which would justify the application of the exception under the second indent of Article 4(2) of Regulation No 1049/2001.
67 In any event, even assuming that pressure might be applied for the purpose of influencing the content of opinions issued by the Council’s legal service, according to the case-law, 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 (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 64).
68 Therefore, the second consideration put forward by the Council in support of its position that the requested document is particularly sensitive in nature must also be declared invalid.
69 In the third place, in paragraphs 41 to 43 of the contested decisions, the Council maintained that the requested document was particularly sensitive in so far as the issues addressed could be the subject of litigation before the EU Courts.
70 In that connection, the applicants claim, in essence, that, even assuming that a risk of litigation might justify application of the exception under the second indent of Article 4(2) of Regulation No 1049/2001, the contested decisions are based on purely speculative and unsupported reasoning. They argue that those decisions do not show, specifically and in a non-hypothetical manner, that there is a risk that the Council’s ability to defend itself on an equal footing with other parties before the EU Courts would be undermined.
71 According to the contested decisions, the specific risk that the ability of the Council’s legal service to defend effectively the decisions it has taken before the EU Courts, on an equal footing with legal representatives of other parties to the proceedings, would be undermined, and, accordingly, that there is a specific risk that its interest in seeking frank, objective and comprehensive advice would be undermined, was shown by:
– first, the large number of cases brought before the Court of Justice of the European Union regarding judicial protection in matters of environmental law, calling into question the compatibility with the Aarhus Convention of the current system of remedies as laid down by the EU Treaties;
– second, the fact that certain environmental NGOs, which had already challenged the current system of remedies before the EU Courts, had also expressed opposition to the Commission’s proposal, urging the European Union to ‘amend EU access to justice law and comply with international law’ in order to remedy the flaws they had allegedly identified regarding that proposal.
72 Admittedly, as stated in paragraph 41 of the contested decisions, many actions raising the issue of the compatibility of the current system of EU remedies with the Aarhus Convention have been brought since 2012.
73 Thus, on the date on which the contested decisions were adopted, the risk of litigation the outcome of which would have depended on the interpretation and scope of the amendment of the Aarhus Regulation could not be regarded as purely hypothetical and was, in fact, reasonably foreseeable.
74 Still, it is apparent from the case-law that difficulty on the part of a legal service of an institution which had initially expressed a negative opinion regarding a draft legislative act subsequently to defend the lawfulness of that act if its opinion had been published is too general an argument to justify an exception to the openness provided for by Regulation No 1049/2001 (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 65).
75 The Court observes that the Council has not specified how disclosure of the requested document could harm its ability to defend itself in the event of litigation concerning the interpretation or application of the Aarhus Regulation, where it is not apparent from the examination of the content of that document that it can be regarded as expressing a negative opinion regarding the Commission’s proposal for amendment of that regulation.
76 Therefore, the third consideration put forward by the Council in support of the ground of the contested decisions based on the particularly sensitive nature of the requested document cannot, similarly, be accepted, with the result that that ground is vitiated by an error of assessment and, consequently, the first complaint must be upheld.
– The second complaint, alleging error of assessment on account of the claim that the scope of the requested document is not particularly wide
77 In support of the ground based on the particularly wide scope of the requested document, the contested decisions set out two considerations.
78 First, in paragraph 39 of the contested decisions, the Council submitted, in essence, that the Commission’s proposal entailed the broadening of the scope of the internal review mechanism provided for by the Aarhus Regulation to acts of general application which run counter to environmental law, contrary to the framework provided for by the Aarhus Regulation that was in force at that time, in which NGOs could seek only internal review of acts of individual application; that restriction was justified by the definition of the admissibility conditions provided for in the fourth paragraph of Article 263 TFEU for the bringing of actions for annulment by legal persons. Accordingly, given that the legislative proposal at issue introduced, according to the Council, an amendment affecting all the matters that fall within the competence of the European Union, the analysis contained in the requested document entailed implications which go beyond the legislative process in question, in so far as that analysis covered the relationship between the mechanism for internal review and the remedies provided for by the Treaties.
79 Second, in paragraph 40 of the contested decisions, the Council maintained that the requested document touched upon issues that may affect the Commission’s choices regarding future legislative proposals in the context of the ‘European Green Deal’ being drawn up at that time.
80 The applicants are of the view, on the contrary, that the issues addressed in the requested document do not go beyond the legislative proposal in question, but are an integral part thereof.
81 In that connection, the Court points out that any analysis of legal texts or concepts carried out by the legal service of an institution in the context of a given legislative process is, by its very nature, capable of being relevant in the context of one or more other legislative processes. That fact alone cannot, however, in the light of the case-law cited in paragraphs 34 and 35 of the present judgment, justify the refusal to disclose a legal opinion given by the legal service of an institution in the context of such a process.
82 In the present case, the Council does no more than rely on the possible impact of the requested document in relation to future legislative proposals of the Commission in environmental matters, while the Commission’s proposal for amendment of the Aarhus Regulation is restricted to those matters alone.
83 So doing, the Council did not, in the contested decisions, rely on any factor liable to explain why the issues addressed in the requested document had a particularly wide scope going beyond the framework of the legislative process resulting from the Commission’s proposal.
84 Last, contrary to the Council’s arguments recalled in paragraph 78 above, it is not clear that the Commission’s proposal, in so far as it proposed that the scope of the internal review mechanism provided for by the Aarhus Convention should be broadened, entailed consequences on the conditions for the admissibility of actions for annulment brought by legal or natural persons, which are provided for by Article 263 TFEU and cannot be amended other than by revision of the Treaties.
85 Accordingly, it is not apparent from the examination of the content of the requested document that the Council’s legal service would have issued a negative opinion regarding the Commission’s proposal on the ground that its implementation would be subject to an amendment of Article 263 TFEU.
86 Therefore, the considerations put forward by the Council in support of the ground of the contested decisions based on the particularly wide scope of the requested document cannot, similarly, be accepted, with the result that that ground is also vitiated by an error of assessment and that the second complaint must be upheld and, consequently, so must the second part of the second plea.
Finding on the second plea in law
87 Having regard to the foregoing considerations and given that, according to the case-law recalled in paragraph 33 above, it is only in the alternative, in the event that the second part of the second plea were rejected, that the Court would have been required to examine the third part of that plea, the Court upholds the second plea in its entirety, without there being any need to examine the third part of that plea.
First plea in law, alleging infringement of Article 4(3) of Regulation No 1049/2001 relating to the protection of the decision-making process
88 The first plea is divided into four parts based, in essence, on the claims that (i) on the date on which the contested decisions were adopted, there was no longer a decision-making process that disclosure of the requested document might have seriously undermined, (i) there was no risk of external pressure preventing full disclosure of the requested document, (iii) the requested document constituted environmental information and (iv) there was an overriding public interest justifying the non-application of the exception provided for in Article 4(3) of Regulation No 1049/2001.
89 The Council disputes the applicants’ claims.
90 It is appropriate for the Court to begin by examining the first part of the present plea.
91 The applicants argue that, in so far as, on the date on which the contested decisions were adopted, the Council had already adopted its position on the Commission’s proposal and, moreover, the provisional agreement had already been concluded, there was no longer, at the time when the contested decisions were adopted, an ongoing decision-making process which disclosure of the requested document could have seriously undermined.
92 The applicants add that such a finding is all the more necessary since, on the date on which the contested decisions were adopted, the Aarhus Committee had already found, in its report of 26 July 2021 referred to in paragraph 18 above, that the provisional agreement resolved its concerns regarding the European Union’s compliance with the Aarhus Convention.
93 In that regard, it must be borne in mind that, under Article 4(3) of Regulation No 1049/2001, the EU institutions are able to refuse access to documents for internal use or containing opinions for internal use. That provision is thus intended to ensure that those institutions are able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted (see judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C‑619/19, EU:C:2021:35, paragraph 46 and the case-law cited).
94 More specifically, under the first subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document, drawn up by an institution for internal use, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
95 Accordingly, the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides that disclosure to third parties of documents forming part of a decision-making process still pending at the date on which the decision on the request for access is adopted must be refused (see, to that effect, judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 127).
96 Consequently, the exception to the right of access to documents under the first subparagraph of Article 4(3) of Regulation No 1049/2001 may no longer be relied on in respect of a procedure closed on the date on which the request for access was made (see, to that effect, judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraphs 124 and 125).
97 In the present case, it is apparent from the circumstances of the dispute that the requested document was drawn up for the Council to be able to take a position on the Commission’s proposal.
98 The case file shows that, on the date when the contested decisions were adopted, the Council’s position on the Commission’s proposal had been taken and a provisional agreement had been reached in the trilogues.
99 Admittedly, on that date, the legislative procedure relating to the adoption of the Commission’s proposal had not yet been formally completed. However, in most cases, agreements reached in the course of trilogues are subsequently adopted by the co-legislators without substantial amendment (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 72), so that it is appropriate to consider that the decision-making process of which the adoption of the requested document formed part was closed at the date on which the Council approved the provisional agreement, that is, 12 July 2021.
100 Accordingly, having regard to the considerations set out in paragraphs 98 and 99 above, the Court finds that, on the date when the contested decisions were adopted, there was no decision-making process within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 which disclosure of the requested document would have been liable to undermine seriously.
101 It follows that the contested decisions, in so far as they are based on the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, are vitiated by an error of law.
102 In addition, it is apparent from the reasoning of the contested decisions that, when they were adopted, the Council did not base its reasoning on the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
103 As a result, it is appropriate to uphold the first part of the first plea and the present plea in its entirety, without there being any need to rule on the second, third and fourth parts of that plea.
The third plea, alleging infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001 relating to the protection of international relations
104 The third plea is divided into two parts, alleging, in essence, (i) that there is no risk that international relations would be undermined and (ii) that the exception based on the protection of international relations is inapplicable, given that the requested document is purely legal in nature.
105 The Council disputes the applicants’ claims.
106 In the context of the first part of the plea, the applicants essentially submit that, in the contested decisions, the Council does not establish to the requisite legal standard that disclosure of the requested document would have undermined international relations in accordance with the third indent of Article 4(1)(a) of Regulation No 1049/2001.
107 The Council disputes the arguments raised by the applicants by submitting, in essence, that full disclosure of the requested document, which contained an analysis of all feasible legal options for amending the Aarhus Regulation, would have compromised the European Union’s position vis-à-vis the other parties to the Aarhus Convention.
108 In that connection, it is apparent from the case-law that the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision, as the institution concerned must explain how disclosure of that document could specifically and actually undermine that interest, irrespective of the fact that that institution enjoys a wide discretion in applying the third indent of Article 4(1)(a) of Regulation No 1049/2001 (judgment of 3 July 2014, Council v In’t Veld, C‑350/12 P, EU:C:2014:2039, paragraphs 51, 52, 63 and 64).
109 Consequently, when an action has been brought before the Court against a Council decision refusing access to a document on the basis of the third indent of Article 4(1)(a) of Regulation No 1049/2001, in support of which an applicant submits that the Council has not demonstrated that disclosure of that document would have undermined the public interest protected by the exception laid down in that provision, the Court must ascertain, within the limits of the pleas in law raised before it, whether that institution has indeed provided in its decision the requisite explanations and established that there is a reasonably foreseeable risk of that interest being undermined, which is not purely hypothetical (see, to that effect, judgment of 19 March 2020, ClientEarth v Commission, C‑612/18 P, not published, EU:C:2020:223, paragraph 33).
110 In that regard, paragraphs 54 to 59 of the contested decisions state, as a ground for justifying the application of the exception relating to the protection of international relations within the meaning of the third indent of Article 4(1)(a) of Regulation No 1049/2001, that full disclosure of the requested document would amount to revealing considerations relating to the ‘legal feasibility of solutions that the European Union could implement to address the alleged non-compliance with the Aarhus Convention’. The contested decisions stress that the risk that the public interest would be undermined as far as international relations are concerned was reasonably foreseeable and not purely hypothetical, in so far as the question whether the Aarhus Regulation complies with the Aarhus Convention was to be examined during an upcoming meeting of the parties concerned in 2021.
111 Thus, the Council’s line of argument relying on a risk based on disclosure of the requested document in so far as the legal opinion it contains could be used by other parties to the Aarhus Convention during discussions during the meeting of the parties relating to whether the Aarhus Regulation complies with that convention, which could weaken the position that the European Union might intend to take in that institutional context.
112 However, in the first place, the existence of a mere link between the elements contained in a document which is the subject of an application for access and the objectives pursued by the European Union in the negotiation and implementation of an international agreement is not sufficient to establish that disclosure of those elements would undermine the public interest protected as regards international relations (see, to that effect, judgments of 19 March 2020, ClientEarth v Commission, C‑612/18 P, not published, EU:C:2020:223, paragraph 31, and of 25 November 2020, Bronckers v Commission, T‑166/19, EU:T:2020:557, paragraph 70).
113 More specifically, regarding legal opinions relating to a legislative procedure, it must be noted that the adoption of an act of secondary EU legislation necessarily implies legal analyses from each institution participating in the legislative procedure.
114 Accordingly, the risk of divergences of legal assessment or interpretation is an integral part of any legislative procedure and such divergences are therefore liable to be explained to non-member countries or international organisations in an international body such as the meeting of the parties to the Aarhus Convention, without necessarily weakening the European Union’s position resulting from the final version of the act ultimately adopted.
115 In the second place, in the present case, as set out in paragraph 18 above, the Aarhus Committee adopted a report on 26 July 2021 recommending that the parties concerned approve the amendment of the Aarhus Regulation as proposed by the Commission and confirmed in the provisional agreement.
116 In addition, it follows from paragraph 75 above that it is not apparent from the examination of the content of the requested document that it can be regarded as expressing a negative opinion regarding the Commission’s proposal for amendment of that regulation.
117 Thus, even assuming that the legal analysis contained in the requested document might set out divergences of assessment or interpretation in relation to the Commission’s proposal which resulted in the provisional agreement, it cannot be held, in the specific circumstances of the case, that its disclosure could weaken the European Union’s international position in its relations with the other parties to the Aarhus Convention, given that those divergences cannot lead to that opinion being regarded as a negative opinion or criticism of a legislative proposal which was ultimately approved by the Aarhus Committee.
118 Consequently, the Council failed to provide sufficient explanations as to the specific, actual, reasonably foreseeable and non-hypothetical risk on which it relied regarding the international relations of the European Union and the other parties to the Aarhus Convention.
119 In those circumstances, the applicants are justified in maintaining that the Council vitiated the contested decisions by a manifest error of assessment by basing its reasoning on the third indent of Article 4(1)(a) of Regulation No 1049/2001, and it is appropriate to uphold the first part of the third plea and the third plea in its entirety, without there being any need to examine the second part thereof.
120 In the light of paragraphs 87, 103 and 119 above, the contested decisions must be annulled, without there being any need to examine the fourth plea, as it is subsidiary in nature.
Costs
121 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
122 Since the Council has been unsuccessful in the present case, it must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Annuls the decisions contained in the letters with references SGS 21/2869 and SGS 21/2870 of the Council of the European Union of 9 August 2021 refusing access in part to Document 8721/21 by ClientEarth AISBL and by Ms Päivi Leino-Sandberg;
2. Orders the Council to pay the costs.
Delivered in open court in Luxembourg on 13 March 2024.
V. Di Bucci | | M. van der Woude |