Case T‑529/09

Sophie in ’t Veld

v

Council of the European Union

(Access to documents — Regulation (EC) No 1049/2001 — Opinion of the Council’s Legal Service on a recommendation from the Commission to authorise the opening of negotiations for an international agreement — Partial refusal to grant access — Exception relating to the protection of the public interest in the field of international relations — Exception relating to the protection of legal advice — Specific and foreseeable threat to the interest in question — Overriding public interest)

Summary of the Judgment

1.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Requirement that the institution should examine the documents specifically and individually — Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4)

2.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the public interest — Judicial review — Scope — Limits

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a))

3.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the public interest — Scope — Opinion of the Council’s Legal Service regarding the legal basis of a decision authorising the opening of negotiations for concluding an international agreement — Included

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

4.      Acts of the institutions — Choice of legal basis — Choice must rest on objective factors which are amenable to judicial review

(Art. 5 TEU)

5.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the public interest — Disclosure of a legal opinion on the opening of negotiations for concluding an international agreement — Risk of a threat to a protected public interest arising from the disclosure of the existence of doubts regarding the choice of the legal basis — Absence

(Art. 218(11) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

6.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

7.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Disclosure of a legal opinion on the opening of negotiations for concluding an international agreement

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent, and (2), second indent)

8.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Overriding public interest justifying the disclosure of documents — Requirement that the institution should weigh the opposing interests

(European Parliament and Council Regulation No 1049/2001, second and sixth recitals and Art. 4(2), second indent)

9.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Scope — Disclosure of a legal opinion relating to international negotiations — Transparency requirement

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent, and (2), second indent)

10.    European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the principle of access to documents — Obligation to grant partial access to those parts of the document not covered by exceptions

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent, and (6))

11.    European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to state reasons — Scope

(Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001)

1.      If an institution decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by an exception — among those provided for in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents — upon which it is relying.

In that regard, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, whether there would be an overriding public interest in disclosure. Further, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Although the fact that, pursuant to a Council decision, the document is classified as ‘restreint UE’ may be an indication as to the sensitive content of that document, it is not sufficient to justify application of the exceptions set out in Article 4 of that regulation.

(see paras 19-21)

2.      The decision to be adopted by an institution under the third indent of Article 4(1)(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, pursuant to which the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest in the field of international relations, is of a complex and delicate nature and calls for the exercise of particular care, having regard in particular to the singularly sensitive and essential nature of the protected interest. Since such a decision calls for a wide margin of discretion, the General Court’s review of its legality must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers.

(see paras 23-25)

3.      An opinion of the Council’s Legal Service, issued in the context of the adoption of the Council decision authorising the opening of negotiations, on behalf of the European Union, for an international agreement between the European Union and a non-Member State in order to make available to that State’s Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing, which is concerned, in essence, with the legal basis of that decision and with the respective competences of the European Union and the European Community, is capable, having regard to its content and the context in which it was drawn up, of being covered by the exception, provided for in the third indent of Article 4(1)(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, relating to the protection of the public interest in the field of international relations.

Since that document was drawn up specifically for the opening of negotiations which were to lead to the conclusion of an international agreement, the analysis carried out by the Legal Service of the institution concerned is necessarily linked to the specific context of the envisaged international agreement, even though the document deals with the issue of the legal basis, which is an issue of internal EU law.

Thus, the disclosure of the elements connected with the objectives pursued by the European Union in the negotiations, especially in so far as they deal with the specific content of the envisaged agreement, would damage the climate of confidence in those negotiations.

In that regard, the applicant cannot usefully rely on the fact that some of the information relating to the content of the envisaged international agreement has been made public both by the Council itself and during debates in the Parliament.

Indeed, the risk invoked by the Council stems from the disclosure of the particular assessment of those matters by its Legal Service and, therefore, the mere fact that the matters themselves were known to the public does not invalidate that consideration.

(see paras 26, 28, 29, 35-38)

4.      The choice of the appropriate legal basis, both for internal and international European Union activity, has constitutional significance. Since the European Union has only conferred powers, it must necessarily link the measure which it wishes to adopt to a provision of the Treaty which empowers it to approve such a measure. Moreover, the choice of the legal basis for a measure, including one adopted in order to conclude an international agreement, does not follow merely from the conviction of its author, but must rest on objective factors which are amenable to judicial review, such as, in particular, the aim and the content of the measure.

(see paras 47, 48)

5.      Since the choice of the legal basis rests on objective factors and does not fall within the discretion of the institution, any divergence of opinions on that subject cannot be equated with a difference of opinion between the institutions as to matters which relate to the substance of the agreement. Accordingly, the mere fear of disclosing a disagreement within the institutions regarding the legal basis of a decision authorising the opening of negotiations on behalf of the European Union is not a sufficient basis for concluding that the protected public interest in the field of international relations may be undermined. Although it is true that proceeding on an incorrect legal basis is liable to invalidate the act concluding the agreement and so vitiate the European Union’s consent to be bound by that agreement, such a threat cannot be presumed from the existence of a legal debate as to the extent of the powers of the institutions with regard to the international activity of the European Union.

Indeed, any confusion as to the nature of its powers, liable to weaken the European Union in defending its position in international negotiations, which may arise from the failure to indicate a legal basis, can only be made worse in the absence of a prior objective debate between the institutions concerned regarding the legal basis of the action envisaged.

Moreover, there was a procedure under EU law, in Article 300(6) EC (now Article 218(11) TFEU), specifically designed to prevent complications, both at European Union level and in international law, resulting from an incorrect choice of legal basis.

(see paras 49-54)

6.      If the Council intends to rely on the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it must carry out an examination in three stages, corresponding to the three criteria therein. Firstly, the Council must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice and, if so, it must decide what parts of it are actually concerned and may, therefore, come within that exception. Secondly, the Council must examine whether disclosure of the parts of the document identified as relating to legal advice would undermine the protection of that advice. Thirdly, if the Council takes the view that disclosure would undermine the protection of legal advice, it must ascertain whether there is any overriding public interest justifying disclosure, notwithstanding the fact that its ability to seek and receive frank, objective and comprehensive advice would thereby be undermined.

(see paras 63, 64)

7.      The risk that the disclosure of a document could specifically and actually undermine an institution’s interest in seeking and receiving frank, objective and comprehensive advice must be reasonably foreseeable and not purely hypothetical.

The mere fact that legal advice concerns the field of the international relations of the European Union is not in itself sufficient for the application of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, since that possibility is already covered by the exception laid down in the third indent of Article 4(1)(a) of that regulation. Although it may be conceded that, in those circumstances, enhanced protection should be afforded to Council documents in order to rule out any threat to the interests of the European Union during the process of international negotiations, that consideration has already been taken into account by the recognition of the wide discretion given to the institutions in applying the exception under the third indent of Article 4(1)(a) of that regulation.

As regards the exception provided for in the second indent of Article 4(2) of that regulation, the Council cannot reasonably rely on the general consideration that a threat to a protected public interest may be presumed in a sensitive area, in particular concerning legal advice given during the negotiation process for an international agreement. Nor may a specific and foreseeable threat to the interest in question be established by a mere fear of disclosing to EU citizens differences of opinion between the institutions regarding the legal basis for the international activity of the European Union and, thus, of creating doubts as to the lawfulness of that activity.

The finding that the risk that the disclosure of legal advice relating to a decision‑making process could give rise to doubts concerning the lawfulness of the adopted acts is not sufficient to constitute a threat to the protection of legal advice is, in principle, transposable to the field of the international activity of the European Union, because the decision-making process in that area is not exempt from the application of the principle of transparency.

(see paras 69, 71, 73-76)

8.      When applying the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is for the Council to balance the particular interest to be protected by non‑disclosure of the document concerned against any overriding public interest justifying disclosure. In particular, account should be taken of the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 in the preamble to Regulation No 1049/2001, from increased openness, in that this 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. Those considerations are of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 in the preamble to Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases.

In that regard, the second subparagraph of Article 207(3) EC and Article 7 of Decision 2006/683 adopting the Council’s Rules of Procedure merely serve as a guide in determining whether or not the Council has acted in its legislative capacity for the purposes of applying the exceptions in Article 4 of Regulation No 1049/2001.

Initiating and conducting negotiations in order to conclude an international agreement fall, in principle, within the domain of the executive. Moreover, public participation in the procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted, in view of the legitimate interest in not revealing strategic elements of the negotiations. Therefore, during that procedure, it must be held that the Council is not acting in its legislative capacity. None the less, application of the considerations connected with the principle of the transparency of the decision-making process of the European Union cannot be ruled out in international affairs, especially where a decision authorising the opening of negotiations involves an international agreement which may have an impact on an area of the European Union’s legislative activity, such as the processing and exchange of information in the context of police cooperation, which may also affect the protection of personal data.

Accordingly, there is an overriding public interest in the disclosure of a document containing legal advice, since it would contribute to conferring greater legitimacy on the institutions and would increase EU citizens’ confidence in those institutions by making it possible to have an open debate on the points where there was a divergence of opinion regarding, moreover, a document discussing the legal basis of an agreement which, once concluded, would have an impact on the fundamental right to the protection of personal data.

(see paras 81-83, 87-90, 93)

9.      As regards the right of public access to documents of the European Union institutions, the fear that the disclosure of an institution’s internal legal advice relating to ongoing international negotiations between the European Union and a non-Member State poses a threat to the public interest in the protection of legal advice cannot be justified given that 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 divergent 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.

In that regard, firstly, the fact that a document concerns an area potentially covered by the exception referred to in the third indent of Article 4(1)(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, relating to the protection of the public interest in the field of international relations, is irrelevant for the purposes of assessing the application of the separate exception, relating to the protection of legal advice, provided for in the second indent of Article 4(2) of that regulation.

Secondly, although the fact that the procedure for concluding an international agreement is still ongoing at the time of the adoption of a decision refusing to grant access to a legal opinion relating to that agreement may be invoked in assessing the risk that the public interest relating to the protection of legal advice might be undermined, it is still not conclusive in ascertaining whether, despite that risk, there exists any overriding public interest justifying disclosure.

Indeed, the public interest in the transparency of the decision‑making process would become meaningless if it were to be taken into account only in those cases where the decision‑making process has come to an end.

(see paras 96, 97, 99-101)

10.    Examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality. It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to limit any refusal to information covered by the relevant exceptions referred to in that article. The institution must grant partial access if the aim pursued by that institution in refusing access to a document may be achieved by merely blanking out the passages which might harm the public interest to be protected.

(see paras 105, 106)

11.    As regards the right of access to documents, it is for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, firstly, whether the document requested does in fact fall within the sphere covered by the exception relied on and, secondly, whether the need for protection relating to that exception is genuine.

In addition, the general nature of that statement of reasons, in so far as the Council does not identify the sensitive content which could be revealed by disclosure, is justified by a concern not to disclose the information which the exception relating to the protection of the public interest in the field of international relations seeks to protect.

(see paras 118, 121)