JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
18 September 2015 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Opinion of the Council’s legal service concerning proposals for a Directive and a Regulation of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation — Partial refusal of access — Exception relating to protection of legal advice — Exception relating to protection of the decision-making process)
In Case T‑395/13,
Samuli Miettinen, residing in Espoo (Finland), represented by O. Brouwer and E. Raedts, lawyers,
applicant,
supported by
Kingdom of Sweden, represented initially by A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, and subsequently by A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, K. Sparrman, E. Karlsson, L. Swedenborg and F. Sjövall, acting as Agents,
and by
Republic of Estonia, represented by N. Grünberg, acting as Agent,
interveners,
v
Council of the European Union, represented initially by K. Pellinghelli, P. Plaza García and K. Toomus, and subsequently by P. Plaza García, A. Jensen and M. Bauer, acting as Agents,
defendant,
APPLICATION for annulment of the Council decision of 13 May 2013 refusing full access to document No 12979/12 of 27 July 2012 containing an opinion of the Council’s Legal Service relating to the proposals for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation and a Regulation on insider dealing and market manipulation and other instruments regarding the harmonisation of administrative sanctions in the framework of financial services,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Wiszniewska-Białecka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 22 October 2014,
gives the following
Judgment
Background to the dispute
1 By letter of 18 February 2013, the applicant, Mr Samuli Miettinen, applied to the Council of the European Union 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) for full access to Document No 12979/12 of 27 July 2012, containing the opinion of the Council’s legal service (’the requested document’), concerning proposals for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation (‘the proposals at issue’) and other instruments regarding the harmonisation of administrative sanctions in the framework of financial services.
2 By e-mail of 3 April 2013, the Council refused to grant the applicant full access to the requested document (with the exception of paragraph 1 thereof), on the basis of the second indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of legal advice and of the first subparagraph of Article 4(3) of that regulation, relating to the protection of the Council’s decision-making process.
3 By e-mail of 3 April 2013, the applicant made a confirmatory application to the Council in accordance with Article 7(2) of Regulation No 1049/2001.
4 By decision of 13 May 2013 (‘the contested decision’), the Council stated that the requested document was an opinion of its Legal Service containing a legal examination of the appropriateness of the legal basis intended for the proposal for a directive (Article 83(2) TFEU) and determining whether the proposals at issue respected the principle of ne bis in idem. The Council confirmed its refusal to grant the applicant full access to the requested document, pursuant to the second indent of Article 4(2) of Regulation No 1049/2001 and the first subparagraph of Article 4(3) of that regulation.
5 The Council however granted the applicant access to paragraphs 4 and 5 of the requested document, on the ground that they related solely to the description of elements of the proposals at issue and did not contain a legal opinion, or elements justifying the application of the exception relating to the protection of the decision-making process.
6 By letter of 16 July 2013, the applicant informed the Council that the requested document had been made publicly available in two Member States and asked it, on that basis, to reverse its decision.
7 By letter of 23 July 2013, the Council, first, indicated that the public disclosure of the requested document of which the applicant informed it in his letter of 16 July 2013, was not in accordance with the relevant provisions of Articles 7 and 8 of Regulation No 1049/2001 and of Annex II to Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure (OJ 2009 L 325, p. 35). Secondly, it stated that the grounds it had invoked in the contested decision for its refusal to grant full access to the requested document were still valid.
Procedure
8 By application lodged at the Court Registry on 31 July 2013, the applicant brought the present action.
9 By documents lodged at the Court Registry on 28 October 2013 and 8 November 2013 respectively, the Kingdom of Sweden and the Republic of Estonia applied for leave to intervene in the proceedings in support of the form of order sought by the applicant. By order of 21 January 2014, the President of the Seventh Chamber of the General Court granted those applications to intervene. The Kingdom of Sweden and the Republic of Estonia lodged their statements in intervention on 7 April 2014 and the parties lodged their observations on those statements within the period prescribed.
10 Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure of 2 May 1991, put questions to the parties. The applicant, the Council and the Kingdom of Sweden replied within the prescribed period.
11 By order of 22 September 2014, the Court ordered the Council to produce a copy of the requested document, in accordance with the third subparagraph of Article 67(3) of the Rules of Procedure of 2 May 1991, and stated that that document would not be communicated to the applicant and the intervening parties. The Council complied with that order within the prescribed period.
12 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing which took place on 22 October 2014.
Forms of order sought by the parties
13 The applicant, supported by the Kingdom of Sweden and by the Republic of Estonia, claims that the Court should:
– annul the contested decision, and the Council’s letter of 23 July 2013;
– order the Council to pay the costs.
14 The Council contends that the Court should:
– remove paragraphs 46, 70 and 84 to 87 of the application from the file;
– dismiss the action;
– order the applicant to pay the costs.
Law
15 In support of his application for annulment, the applicant raises four pleas in law, the first alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, the second alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, the third alleging failure to apply the overriding public interest test contained in Article 4(2) and (3) of that regulation, and the fourth alleging breach of the duty to state reasons.
Preliminary observations
16 It should be noted that Regulation No 1049/2001 is designed — as is stated in recital 4 and reflected in Article 1 — to confer on the public as wide a right of access as possible to documents of the institutions of the European Union (see judgment of 17 October 2013 in Council v Access Info Europe, C‑280/11 P, ECR, EU:C:2013:671, paragraph 28 and the case-law cited; judgment of 3 July 2014 in Council v in 't Veld, C‑350/12 P, ECR, EU:C:2014:2039, paragraph 46).
17 However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision. Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment in Council v Access Info Europe, cited in paragraph 16 above, EU:C:2013:671, paragraphs 29 and 30 and the case-law cited; judgment in Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraphs 47 and 48).
18 However, 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 (judgment in Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraph 51).
19 Indeed, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgment in Council v Access Info Europe, cited in paragraph 16 above, EU:C:2013:671, paragraph 31 and the case-law cited; judgment in Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraph 52).
20 Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 in the preamble to Regulation No 1049/2001, in that it 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 (judgments of 1 July 2008 in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, ECR, EU:C:2008:374, paragraph 45; Council v Access Info Europe, cited in paragraph 16 above, EU:C:2013:671, paragraph 32; and Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraph 53).
21 Furthermore, the Court of Justice has also held that those considerations were clearly of particular relevance where the Council was acting in its legislative capacity, a fact reflected in recital 6 in the preamble to Regulation No 1049/2001, which states that wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (judgments in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 46, and Council v Access Info Europe, cited in paragraph 16 above, EU:C:2013:671, paragraph 33).
The first plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001
22 The applicant, supported by the Kingdom of Sweden and the Republic of Estonia, claims that the Council has failed to show that there existed a genuine risk, which was reasonably foreseeable and not purely hypothetical, that full disclosure of the requested document would undermine the protection of legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001. The Council relied on general presumptions.
23 Under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of legal advice, unless there is an overriding public interest in disclosure of that document.
24 It should be noted that the case-law of the Court of Justice provides that, as regards the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the examination to be undertaken by the Council when it is asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in that provision (judgments in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 37, and Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraph 95).
25 Accordingly, the Council must first satisfy itself that the document which it is asked to disclose does indeed relate to legal advice. Secondly, 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. Thirdly and lastly, if the Council takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on the Council to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would thereby be undermined (see, to that effect, judgments in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraphs 38 to 44, and Council v in 't Veld, cited in paragraph 16 above, EU:C:2014:2039, paragraph 96).
26 The Court of Justice has also held that, in so far as the interest in protecting the independence of the Council’s legal service could be undermined by the disclosure of opinions of the Council’s legal service issued in the course of legislative procedures, that risk would have to be weighed up against the overriding public interests which underlie Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 in the preamble to Regulation No 1049/2001. It follows from the above considerations 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 (judgment in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraphs 67 and 68).
27 That finding does not 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 reasons for such a refusal (judgment in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 69).
28 In the present case, it is not disputed that the requested document is an opinion of the Council’s legal service given in the context of a legislative procedure.
29 As regards the exception related to the protection of legal advice provided for in the second indent of Article 4(2) of Regulation No 1049/2001, the Council stated, in the contested decision, that the requested document ‘[was] on a novel issue which is of relevance to a wide range of current and future dossiers’ and which ‘relate[ed] to the political choices in ensuring criminal sanctions for insider dealing and market manipulation and on the harmonisation of administrative sanctions in the framework of financial services, thus entailing a real and concrete risk for subsequent litigation scrutinising these choices and orientations’. It added that ‘if released, [the requested document] could be invoked in future court proceedings’ and that ‘in such a case, public release of the requested document could affect the Council’s ability to defend its position in court, upsetting the principle of equality of arms, and preventing an impartial and objective judicial review of the measures concerned’.
30 The Council stated in addition that disclosure of the requested document ‘would also create a particular risk that Member States and the Council would be deterred from requesting similarly sensitive legal advice in the future’ and ‘might have an impact on the institution’s interest in receiving frank, objective and comprehensible legal advice in similar situations in the future’. Taking into account the judgment in Sweden and Turco v Council, cited in paragraph 20 above (EU:C:2008:374), the Council concluded that the requested document should ‘be protected against public disclosure, both on account of its particularly sensitive nature and its broad scope’. The Council added, with regard to the existence of an overriding public interest, that the need to protect legal advice, taking into account its sensitivity and its contentiousness, outweighed all possible factors which would plead in favour of full disclosure of the requested document.
The risk of undermining the Council’s ability to defend its position in court proceedings
31 As regards the existence of a risk of undermining the Council’s ability to defend its position in court proceedings, it should be noted that, as the Court of Justice has held on numerous occasions, an argument of such a general nature could not justify an exception to the transparency required by Regulation No 1049/2001 (see, to that effect, judgments in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 65; of 21 July 2011 in Sweden v MyTravel and Commission, C‑506/08 P, ECR, EU:C:2011:496, paragraph 116; and of 4 May 2012, In 't Veld v Council, T‑529/09, ECR, EU:T:2012:215, paragraph 78).
32 Moreover, it is apparent from the contested decision, referred to in paragraph 29 above, that the Council merely stated that disclosure of the requested document presented a risk of undermining its ability to defend its position in court proceedings, because it concerned a novel issue which was of relevance to a wide range of current and future dossiers and which related to political choices in ensuring sanctions for financial crime. The Council did no more than to refer in general to hypothetical court proceedings and did not substantiate the existence of that risk with concrete evidence explaining how disclosure of the requested document could undermine its ability to defend itself.
33 It is therefore necessary to reject the argument put forward by the Council in the defence that the reference to the content and nature of the legal advice, that is to say the novelty and contentious character of the legal issues and the fact that they deal with a subject-matter which is traditionally subject to litigation sufficed to show that there is a reasonably foreseeable risk that the issues addressed in the requested document will be subject to litigation.
34 Therefore, the general assertions contained in the contested decision cannot be regarded as making a detailed case for establishing the existence of a risk that is not purely hypothetical of undermining the Council’s ability to defend itself in court proceedings.
The risk of undermining the protection of the independence of the Council’s legal service
35 As regards the existence of a risk that the Council and the Member States would be deterred from requesting legal advice in the future and the effect that disclosure of the requested document could have on the institutions’ interest in receiving frank, objective and comprehensive advice in similar situations in the future, it should be noted that, according to the case-law, the fear that the independence of the Council’s legal service would be compromised by possible disclosure of legal opinions issued by the latter in the course of legislative procedures lies at the very heart of the interests protected by the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001. That exception seeks specifically to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice (judgment in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, point 62).
36 However, it is apparent from the case-law cited in paragraphs 24 to 27 above that, in so far as disclosure of opinions of the Council’s legal service issued in the course of legislative procedures is capable of undermining the interest in protecting the independence of the Council’s legal service, that risk must be weighed up against the overriding public interests consisting in enhancing transparency of the legislative process and the democratic right of European citizens. In accordance with that case-law, the Council is obliged to disclose opinions of its legal service relating to a legislative process, except where it shows in a detailed manner that the legal opinion requested is particularly sensitive or has a particularly wide scope that goes beyond the context of the legislative process in question.
37 In that regard, the applicant, supported by the Kingdom of Sweden and by the Republic of Estonia, claims that the Council failed to adduce detailed evidence that the requested document was particularly sensitive or had a particularly wide scope. As regards the sensitive character of the requested document, in the contested decision, the Council merely stated the subject of the dossier to which the legal advice at issue related. However, the novelty and contentious character of the dossier are factors which plead in favour of disclosure of the requested document. As regards the wide scope of the requested document, the fact that the legal advice examines the legal basis of the proposals at issue in the light of the principle of ne bis in idem does not justify the Council’s assertion that that advice has a particularly wide scope which goes beyond the legislative procedure at issue, in so far as an examination of that principle is linked to the legitimacy of the legislative procedure. Likewise, the assertion that the requested document is relevant to a ‘wide range of current and future dossiers’ does not constitute a detailed statement of reasons.
38 It should be noted that the requested document is an opinion of the Council’s legal service which contains an examination of the appropriateness of the legal basis intended for the proposal for a directive (Article 83(2) TFEU) and which determines whether the proposals at issue respected the principle of ne bis in idem.
– The particularly sensitive character of the requested document
39 As regards the particularly sensitive character of the requested document, it should be noted that, in the contested decision, the Council reproduces the assessment in its refusal decision of 3 April 2013, to which it expressly refers. The Council had considered that the legal advice at issue was particularly sensitive, on the ground that the questions examined were new and relevant to a wide range of current and future dossiers and that, in the light of the sensitive and contentious character of the legal advice, there was a genuine risk that those questions could be brought before the courts.
40 It is necessary to examine whether those assertions are sufficient in order to establish, in a detailed manner, the particularly sensitive nature of the requested document.
41 First of all, in the light of its contents, the requested document examines the question of the legal basis envisaged for the proposal for a directive at issue and whether the proposals at issue comply with a general principle of law, which are legal questions not going beyond the normal context of the examination of legislative proposals.
42 Moreover, it is necessary to reject the Council’s argument that the legal advice concerns a novel and contentious issue in the field of criminal law and fundamental rights, which are sensitive areas by their very nature. Even if the field of sanctions relating to financial crimes must be regarded as a sensitive area, that does not suffice in order to establish that the requested document, by its contents, has a particularly sensitive character.
43 Next, the fact that the document deals with questions which are novel and likely to be contentious cannot confer on it a sensitive character. The Council does not explain how the fact that the proposal for a directive is the first instrument based on Article 83(2) TFEU is capable of conferring on the requested document a sensitive character. Moreover, conferring particularly sensitive character on all legal advice concerning a novel question would result in impeding in practice the disclosure of a large proportion of that advice. It is precisely when they are dealing with novel questions that the institutions request advice from their legal service.
44 Likewise, the assertion relating to the contentious nature of the legal advice contained in the requested document is not substantiated in a detailed manner and, on account of its general nature, is liable to apply to a large amount of legal advice.
45 Finally, it is necessary to reject the Council’s assertion that the sensitive character of the requested document was a consequence also of the risk that the questions which were addressed in the legal advice could be brought before the courts. The existence of a hypothetical risk of court proceedings, the purpose and nature of which are not specified by the Council, cannot constitute an argument capable of rendering the requested document sensitive in its character.
46 Moreover, although, by that assertion relating to the existence of a risk of litigation as regards the questions analysed in the requested document, the Council contends that disclosure of the legal opinion relating to legislative proposals may give rise to doubts regarding the lawfulness of those legislative acts, the Court of Justice has held that it was precisely openness in this regard that contributed to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated (judgment in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 59).
47 It follows that the Council has failed to show that the requested document had a particularly sensitive character.
– The particularly wide scope of the requested document
48 As regards the particularly wide scope of the requested document, the Council merely stated in the contested decision that that document concerned a wide range of ongoing and future dossiers and that it ‘relat[ed] to the political choices in ensuring criminal sanctions for insider dealing and market manipulation and on the harmonisation of administrative sanctions in the framework of financial services’.
49 The fact that the requested document concerns sanctions applicable to insider dealing and to market manipulation merely refers to the contents themselves of the proposals at issue. Likewise, the fact that the requested document examines the appropriateness of the legal basis of the proposal for a directive and whether the proposals at issue comply with the principle of ne bis in idem cannot be considered to confer on it a scope going beyond the legislative process at issue.
50 In the contested decision, the Council also asserts that the requested document concerns a subject which is of relevance to a wide range of current and future dossiers and that it relates to political choices regarding the harmonisation of administrative sanctions in the framework of financial services.
51 Such an assertion cannot give the requested document a particularly wide scope. It is clear from that document that it essentially concerns the proposals at issue. It mentions other proposals for directives relating to administrative sanctions in the framework of financial services only at the end of the document and in very general terms. Moreover, since those other proposals for directives concern, like the proposals at issue, the question of sanctions in the financial sector, the relevant parts of the requested document cannot be considered to have a scope going beyond that question.
52 It follows that the Council has failed to show that the requested document had a particularly wide scope.
53 Therefore, the Council has not established in a detailed manner that the requested document was of a particularly sensitive character or had a particularly wide scope and therefore has failed to justify its refusal to disclose the requested document.
54 It follows from the foregoing that the first plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, must be upheld.
55 That finding cannot lead to the annulment of the contested decision and of the Council’s letter of 23 July 2013 in so far as the Council may have justified, in the contested decision, to which that letter refers, the refusal to grant full access to the requested document on the basis of the exception provided for in Article 4(3) of Regulation No 1049/2001. It is therefore necessary to examine the second plea in law.
The second plea in law, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001
56 The applicant, supported by the Kingdom of Sweden and the Republic of Estonia, claims that the Council has failed to show that full disclosure of the requested document would seriously undermine the decision-making process within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. The applicant claims in particular that the grounds relied upon by the Council in the contested decision do not suffice for the purpose of showing that the decision-making process would be seriously and genuinely undermined, or that there exists a genuine risk, which is reasonably foreseeable and not purely hypothetical, that disclosure of the requested document would undermine the decision-making process.
57 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 or received by an institution, 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.
58 It should be noted that, according to the case-law cited in paragraph 19 above, the principle of strict interpretation of the exceptions laid down in Article 4 of Regulation No 1049/2001 requires the institution which invokes one of those exceptions to explain how access to the requested document could specifically and actually undermine the interest protected by that exception. Likewise, in accordance with that case-law, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical (judgment of 7 June 2011 in Toland v Parliament, T‑471/08, ECR, EU:T:2011:252, paragraph 70).
59 In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question (judgments of 18 December 2008 in Muñiz v Commission, T‑144/05, EU:T:2008:596, paragraph 75, and Toland v Parliament, cited in paragraph 58 above, EU:T:2011:252, paragraph 71).
60 In the present case, as regards the exception relating to protection of the ongoing decision-making process, provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Council stated in the contested decision that ‘full disclosure of the requested document could prevent a genuine debate on the issues concerned, by shifting the focus of the discussions to the content of a specific element of the decision-making process, thereby seriously undermining the good conduct of the latter’. It added that ‘disclosure of the document, which [gave] a legal opinion as regards elements of key importance to the negotiations and which [were] subject to complex discussions would therefore involve a concrete risk of undermining the capacity of the institution to reach a final agreement on the proposals’.
61 It is not disputed that, on the date of adoption of the contested decision, the decision-making process which should lead to the adoption of the directive and regulation concerned by the requested document was ongoing.
62 It is apparent from the contested decision that in order to justify its refusal to grant access to the requested document, the Council merely stated that disclosure of that document ‘could’ impede a debate of the questions concerned by diverting the discussions to a specific element of the decision-making process or ‘would involve’ a genuine risk of impeding the ability of the institutions to reach an agreement.
63 However, it is plain that the contested decision does not contain any tangible element which would allow the conclusion to be drawn that the risk that the decision-making process would be undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical. In particular, the contested decision makes no mention of the existence, on the date on which it was adopted, of anything liable to undermine, or attempt to undermine, the ongoing decision-making process, or of objective reasons on the basis of which it could reasonably be foreseen that the decision-making process would be undermined if the requested document were disclosed.
64 Contrary to the assertion made by the Council in its defence, the statement made in the contested decision did not suffice to establish a risk of serious prejudice to the decision-making process which is not merely hypothetical.
65 Therefore, it must be stated that, in the contested decision, the Council did no more than offer general assertions which do not disclose a sufficiently serious and reasonably foreseeable risk justifying the application of the exception provided for by the first subparagraph of Article 4(3) of Regulation No 1049/2001.
66 Moreover, it should be noted that the reasons put forward by the Council in the contested decision for refusing access to the requested document on the basis of the exception provided for by the first subparagraph of Article 4(3) of Regulation No 1049/2001 are not persuasive.
67 In that regard, it should be noted that full public access to the contents of Council documents constitutes the principle, above all in the context of a procedure in which the institutions act in a legislative capacity, and that the exceptions must be interpreted strictly.
68 First, as regards the risk relied on by the Council that disclosure of the requested document could shift the focus of the debates by diverting it to a specific element of the decision-making process, it should be noted that the requested document examines whether the proposed legal basis for the proposal for a directive is appropriate.
69 It is sufficient to note, as the Republic of Estonia has done, that the question of the legal basis is an essential question in the legislative process and does not shift the focus of debates, but is an essential part thereof.
70 Secondly, as regards the risk invoked by the Council that disclosure of the requested document would impede its negotiating capacities and the chances of reaching an agreement with the Parliament, the Kingdom of Sweden correctly argues that a proposal is designed to be debated, in particular as regards the choice of legal basis. Moreover, as the applicant states, in the light of the importance of the choice of legal basis of a legislative act, the transparency of the choice does not weaken the decision-making process, but strengthens it.
71 In that regard, as the Court of Justice has held, it is precisely openness concerning legal advice that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole (judgments in Sweden and Turco v Council, cited in paragraph 20 above, EU:C:2008:374, paragraph 59, and Sweden v MyTravel and Commission, cited in paragraph 31 above, EU:C:2011:496, paragraph 113).
72 Finally, as regards the Council’s argument that the fact that the legal opinion is particularly sensitive and has a wide scope affects the assessment of the risk that disclosure of the document undermines the decision-making process, it suffices to note that it is clear from the examination of the first plea that the Council has failed to show that the requested document was particularly sensitive or had a wide scope.
73 It results from the foregoing that the Council has failed to establish that full disclosure of the requested document would seriously undermine the decision-making process and that application of the exception under the first subparagraph of Article 4(3) of Regulation No 1049/2001 was justified.
74 Therefore, it is necessary to uphold the second plea in law, alleging an infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
75 It is apparent from all the foregoing that since none of the justifications relied on by the Council in support of its refusal to grant full access to the requested document are well founded, it is necessary to annul the contested decision and the Council’s letter of 23 July 2013, without it being necessary to rule on the other pleas raised by the applicant, or on the Council’s request that certain points of the application be removed from the file.
Costs
76 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. Since the Council has been unsuccessful, it must be ordered to pay its own costs, as well as those incurred by the applicant, in accordance with the form of order sought by the latter.
77 Under Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. The Kingdom of Sweden and the Republic of Estonia shall therefore bear their own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls the decision of the Council of the European Union of 13 May 2013 denying full access to document No 12979/12 of 27 July 2012 containing an opinion of the Council's legal service relating to the proposals for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation and a Regulation on insider dealing and market manipulation and other instruments regarding the harmonisation of administrative sanctions in the framework of financial services, and the letter of the Council of 23 July 2013;
2. Orders the Council to bear its own costs and those incurred by Mr Samuli Miettinen;
3. Orders the Kingdom of Sweden and the Republic of Estonia to bear their own costs.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 18 September 2015.
[Signatures]