Pech v Council (Access to documents - Protection of legal advice - Judgment) [2021] EUECJ T-252/19 (21 April 2021)

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(Access to documents – Regulation (EC) No 1049/2001 – Second indent of Article 4(2) of Regulation No 1049/2001 – Protection of legal advice – First subparagraph of Article 4(3) of Regulation No 1049/2001 – Protection of the decision-making process – Refusal to grant full access to a legal opinion of the Council’s Legal Service)

Laurent Pech, residing in London (United Kingdom), represented by O. Brouwer and T. McGrath, lawyers,

Kingdom of Sweden, represented by O. Simonsson, C. Meyer-Seitz, A. Runeskjöld, J. Lundberg, M. Salborn Hodgson, H. Shev, H. Eklinder and R. Shahsavan Eriksson, acting as Agents,

Council of the European Union, represented by K. Pavlaki and E. Rebasti, acting as Agents,

APPLICATION under Article 263 TFEU seeking annulment of the decision of the Council of 12 February 2019 refusing to grant full access to the opinion of its Legal Service contained in document ST 13593 2018 INIT concerning the proposal for a regulation of the European Parliament and of the Council of 2 May 2018 on the protection of the European Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final),

composed of V. Tomljenović, President, F. Schalin (Rapporteur) and I. Nõmm, Judges,

having regard to the written part of the procedure and further to the hearing on 16 November 2020,

1 The applicant, Mr Laurent Pech, is a French citizen who works as a Professor of European law at Middlesex University, London (United Kingdom). He specialises in European public law.

2 On 30 October 2018, the applicant requested from the Council of the European Union, following the publication of a press article in the magazine Politico on 29 October 2018, revealing the existence of an opinion of the Council’s Legal Service, access to that opinion pursuant to 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).

3 The opinion to which access was requested, identified by the Council as document ST 13593 2018 INIT (‘the opinion’ or ‘the requested document’), concerns the European Commission proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final).

4 On 10 December 2018, the Council granted access to paragraphs 1 to 8 of the requested document, with the exception of the second sentence of paragraph 1, and refused to grant access to the remainder of the document.

6 In the decision of 12 February 2019, the Council confirmed its decision to refuse full access to the requested document (‘the contested decision’).

7 In the first place, the Council relied on the first subparagraph of Article 4(3) of Regulation No 1049/2001 (protection of the decision-making process) on the grounds that:

– the requested document related to a matter in respect of which the decision-making process was ongoing at that time and the matters being discussed were complex, highly controversial, particularly sensitive and delicate;

– if the requested document were fully disclosed, some of the arguments developed could give rise to external interference which might affect the possibility of reaching a final agreement on the legislative proposal;

– that could limit the Council’s options in upcoming interinstitutional negotiations.

8 In the second place, the Council relied on the second indent of Article 4(2) of Regulation No 1049/2001 (protection of legal advice), claiming that:

– in view of its content, the requested document fell within the scope of that exception, since it provided a detailed analysis on legal issues and in particular on the relevance of the legal basis for the Commission’s proposal, its compatibility with the EU Treaties and the legal feasibility of the procedure for the adoption of measures under the envisaged mechanism;

– although the legal advice related to a legislative procedure for which a particularly high requirement of transparency applied, the issues touched upon were of a systemic nature and had a broad scope that went beyond the context of the legislative process in question;

– the issues analysed in the requested document were highly contentious and particularly controversial, which made the legal advice sensitive in the context of the ongoing discussions;

– furthermore, there was a high risk that the legal issues examined would be the subject of future litigation;

– therefore, full disclosure could compromise the interest of the institution in seeking and receiving frank, objective and comprehensive legal advice.

9 In the third place, as regards partial access, provided for in Article 4(6) of Regulation No 1049/2001, the Council took the view that all of the parts of the requested document which had not been disclosed in its first reply were covered in their entirety by the exceptions relied on and that no additional partial access could be granted.

10 In the fourth and last place, the Council concluded that there was no overriding public interest in disclosure.

11 By application lodged at the Court Registry on 15 April 2019, the applicant brought the present action.

13 By document lodged at the Court Registry on 8 August 2019, the Kingdom of Sweden applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By decision of 18 September 2019, the President of the Second Chamber of the General Court granted that leave to intervene.

15 On 5 December 2019, the Kingdom of Sweden lodged its statement in intervention at the Court Registry.

17 The observations of the Council and those of the applicant on the statement in intervention were lodged at the Court Registry on 29 and 30 January 2020, respectively.

18 By order of 17 June 2020, the Court ordered that the Council produce a copy of the requested document and stated, in accordance with Article 104 of the Rules of Procedure of the General Court, that that document would not be communicated to the applicant. The Council complied with that order within the prescribed period.

19 The parties made their submissions to the Court and gave their oral replies to the Court’s questions at the hearing on 16 November 2020.

20 The applicant, supported by the Kingdom of Sweden, claims that the Court should:

– annul the contested decision refusing full access to the opinion pursuant to the second indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001;

– in the alternative, order the Council to grant wider partial access to the opinion pursuant to Article 4(6) of Regulation No 1049/2001;

– order the Council to pay the costs, including the costs of any intervening parties.

22 At the hearing, in reply to the questions put by the Court, the applicant stated that his second head of claim was to be understood as an application for annulment of the contested decision on the basis of Article 4(6) of Regulation No 1049/2001, formal note of which was made in the minutes of the hearing.

23 In support of his action, the applicant raises three pleas in law, alleging, first, an error in law and misapplication of the first subparagraph of Article 4(3) of Regulation No 1049/2001 relating to the protection of the decision-making process, second, an error in law and misapplication of the second indent of Article 4(2) of that regulation relating to the protection of legal advice and, third, in the alternative, infringement of Article 4(6) of that regulation, which concerns partial access to the requested document.

24 In accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 73).

25 That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).

26 It can be seen from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system (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, paragraphs 45 and 59, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 75).

27 To those ends, Article 1 of Regulation No 1049/2001 provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 76 and the case-law cited).

28 It is also apparent from Article 4 of Regulation No 1049/2001, which introduces a system of exceptions in that regard, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgments of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 57, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 77).

29 As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 78 and the case-law cited).

30 In that regard, it should be borne in mind that if an EU institution, office, body or agency dealing with a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of the interest being so undermined must be reasonably foreseeable and not purely hypothetical (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 51 and the case-law cited).

31 It is in the light of those general considerations that the pleas put forward by the applicant must be examined.

First plea in law, alleging an error in law and misapplication of the first subparagraph of Article 4(3) of Regulation No 1049/2001

32 In the first plea, which is divided into three parts, the applicant, supported by the Kingdom of Sweden, claims that the Council erred in law and incorrectly applied the first subparagraph of Article 4(3) of Regulation No 1049/2001 in that it:

– did not show that full disclosure of the opinion could specifically and actually undermine the decision-making process in question;

– misinterpreted and misapplied the first subparagraph of Article 4(3) of Regulation No 1049/2001 and the case-law of the EU Courts by not taking account of provisions of primary EU law and the principle that EU legislative documents are subject to the principle of the widest possible access;

33 In the first part of the first plea, the applicant claims that the Council cannot lawfully justify non-disclosure of the opinion by vague notions such as those referring to issues described as ‘complex’, ‘highly controversial’, ‘delicate’, ‘particularly sensitive’. Furthermore, the fact that the members of the Council may have expressed different positions regarding the legislative proposal cannot justify an arbitrary extension of the scope of the exception relating to the institutions’ decision-making process. The existence of disagreement between the members of the Council with regard to a legislative proposal is normal and does not demonstrate how disclosure of the requested document would undermine the decision-making process, let alone seriously undermine it. Moreover, if the Council were allowed to rely on vague and subjective notions, such as ‘complex’ proposals or discussions, in the absence of any other explanation, that would open the way to abusive refusals to disclose documents.

34 Similarly, according to the applicant, given that the Council has itself acknowledged that Member States had already publicly expressed ‘very divergent preliminary positions’ and that part of the opinion had been published in the press, it is difficult to explain how full disclosure of that document could result in any additional ‘pressure’ capable of undermining the prospects of reaching a final agreement. As regards the ‘external interference’ claimed by the Council, the applicant submits that the Council failed to draw the logical conclusion from its own admissions. In any event, according to the applicant, legislating is a process that must take place publicly and in a transparent manner. Lastly, the Council’s argument that disclosure of the opinion could harm its position in the context of subsequent legislative discussions with the co-legislators cannot be accepted since a proposal is made to be debated on the basis of all relevant considerations. Moreover, an informed debate does not undermine the decision-making process, but strengthens it.

35 In the second part of the first plea, the applicant accepts that the provisions of primary law do not impose an obligation on the institutions to grant full access to all documents drawn up in the context of a legislative process. However, he submits, it follows clearly from the Treaty of Lisbon and from Regulation No 1049/2001 that the ‘default position’ is that access should be granted and, in the event that access is refused, it must be demonstrated that access to the documents would specifically, actually and in a non-hypothetical manner undermine the interest invoked. In other words, the Council would be entitled to refuse access to certain documents of a legislative nature on the basis of the exceptions referred to in Article 4 of Regulation No 1049/2001, but only in duly justified cases, which is not the case here.

36 In the third part of the first plea, the applicant takes the view that, in the contested decision, the Council failed to examine the existence of a public interest in disclosure and, more generally, failed to balance the interests served by disclosure against those opposing disclosure. The Council merely raised general considerations relating to the need to ensure transparency and public participation, rather than examining the particular interest of the public in respect of access to the opinion. In the face of an increasing number of rule-of-law crises within the European Union, transparency on how the European Union protects the values referred to in Article 2 TEU – in the case at hand through the protection of the European Union’s budget in case of generalised deficiencies as regards the rule of law – is of particular importance for ensuring both the participation of EU citizens and civil society and the legitimacy of EU decision-making in that field.

37 The Council disputes the applicant’s arguments. It states that it took into account the provisions of primary EU law and the principle of widest possible access to legislative documents. However, that principle cannot be regarded as equivalent to automatic and absolute access. It is clear from the case-law that a document issued in the context of a legislative procedure may, in certain circumstances, fall under one of the exceptions referred to in Article 4 of Regulation No 1049/2001.

38 The Council submits that the contested decision sets out, in a sufficient manner, the objective reasons on the basis of which it could reasonably be foreseen, in the event of full disclosure, that the decision-making process would be undermined. In that regard, in the first place, the Council notes that the contested decision refers to complex discussions within the Council on account of the fact that the Member States have different views on the Commission’s proposal, and those differences concern in particular the legal issues covered by the opinion. In the second place, the ongoing discussions are delicate in the light of the current legal and political context, due to the particularly sensitive debate on the intended measures relating to the adoption of a mechanism linking the grant of EU financing to respect for the rule of law. In that regard, the Council observes in its written pleadings that the legislative proposal was submitted at a time when the procedures laid down in Article 7(1) TEU had been initiated in respect of two Member States and that respect for the rule of law and EU values laid down in Article 2 TEU is the subject of intense public debate. Those circumstances show that the legislative debate on the proposal is taking place within a context which is highly politicised. In the third place, the opinion addresses, in a frank manner, issues relating to the compatibility of the proposal for a regulation with Article 7 TEU, the genuine character of the proposed budgetary conditionality, the appropriateness of its legal basis, the lawfulness of the procedure prescribed for the adoption of measures under that mechanism and possible solutions, since those issues are central to the ongoing political debate. In the fourth place, the decision-making process has been subject to intense media attention and therefore it is legitimate to consider, in the contested decision, that full disclosure of the opinion and disclosure of the reasoning developed therein could lead to external pressure and, accordingly, undermine the Council’s decision-making process. Finally, in the fifth place, even if the Council did manage to reach an agreement internally, it takes the view that disclosure of the opinion might harm its position in the context of the subsequent legislative discussions with the co-legislators.

39 As to the alleged incorrect assessment of the public interest in disclosure of the opinion, the Council submits that it carefully balanced the interests involved, but it took the view that the protection of the effectiveness of the decision-making process, in the context of a particularly complex legislative procedure, weighed in favour of non-disclosure of the requested document.

40 Moreover, according to the Council, the principle of democratic accountability that underpins the principle of wider access to legislative documents must be applied differently depending on whether the particular case concerns documents containing the positions of the political decision-makers which are subject to scrutiny by citizens or documents produced by technical services, in particular the Legal Service, which, as such, are not accountable to citizens.

41 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.

42 It should be borne in mind that, according to the case-law cited in paragraphs 29 and 30 above, the principle that the exceptions provided for in Article 4 of Regulation No 1049/2001 must be interpreted strictly 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. Similarly, 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, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 70).

43 In addition, in order to be covered by the exception provided for 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 disclosure of the documents in question would have a substantial impact on the decision-making process. The assessment of that serious nature depends on all the circumstances of the case, including 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, Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 75, and of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 71).

44 Lastly, it follows from the case-law that the mere reference to a risk of negative repercussions linked to access to internal documents and to the possibility that interested parties may influence the procedure do not suffice to prove that disclosure of those documents would seriously undermine the decision-making process of the institution concerned (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 83).

45 In the present case, in the contested decision, as regards the exception relating to the 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 that the proposal and the discussions were complex, that the Member States had publicly expressed preliminary positions on the proposal, that those positions and sensitivities on the part of the members of the Council were very different and that, as a result, the ongoing discussions were delicate. Moreover, in the current legal and political context, the debate on the envisaged measures, seeking to adopt a mechanism which links EU financing to respect for the rule of law, is particularly sensitive. Thus, if the analysis carried out by the Council’s Legal Service were to be disclosed in full, some of the arguments set out therein could give rise to external interference. The resulting pressure might complicate negotiations, allowing members of the Council to accept compromise solutions or pursue certain options and thus affect the possibility of reaching a final agreement on the proposal. Furthermore, once internal agreement has been achieved, the proposal envisaged would subsequently have to be further negotiated with the Parliament and the Commission, which is why disclosure could also limit options during interinstitutional procedures.

46 It is common ground that, at the time when the contested decision was adopted, the decision-making process intended to lead to the adoption of the proposal for the regulation concerned by the opinion was ongoing.

47 It is apparent from the contested decision that the Council, in order to justify its refusal to grant access to the opinion, merely stated that disclosure of that document ‘could’ make it more difficult for the members of the Council to accept compromise solutions or to pursue certain options, thereby limiting the possibility of reaching a final agreement, or that it ‘could’ subsequently limit options during the interinstitutional negotiations.

48 However, it is clear that the contested decision does not contain any tangible element which would allow the conclusion to be drawn that that risk that the decision-making process might 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 undermining, or liable 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 opinion were disclosed (see, to that effect, judgment of 18 September 2015, Miettinen v Council, T‑395/13, not published, EU:T:2015:648, paragraph 63).

49 Contrary to the assertion made by the Council in its defence, the indications set out in the contested decision did not suffice to establish a risk of serious prejudice to the decision-making process which is not merely hypothetical.

50 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 such as to justify the application of the exception provided for by the first subparagraph of Article 4(3) of Regulation No 1049/2001.

51 In that regard, it should also be noted that the Council’s written pleadings do not make it possible to establish that the risk of serious prejudice to the decision-making process referred to in the contested decision is reasonably foreseeable.

52 First, as regards the risk of further polarising discussions, it should be recalled that the opinion examines, inter alia, the merits of the proposed legal basis for the proposal for a regulation.

53 It is sufficient to note, as the applicant does, that the question of the legal basis is an essential issue in the legislative process. The same applies with regard to conditionality regimes and the reversed qualified majority. Moreover, the latter, as well as the issues relating to their lawfulness or their legal basis, are not new subjects in EU law. Recourse to the conditionality regime and to the reversed qualified majority voting system are well-established practices. Such recourse, as is apparent from the case-law, is not in itself contrary to EU law.

54 Second, as regards the risk of undermining negotiating capacities and the prospects 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, transparency in regard to that choice does not weaken the decision-making process, but strengthens it.

55 In that regard, as the Court of Justice has observed, it is precisely transparency 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 that 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 of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 59, and of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 113).

56 Third, as regards the complexity of the discussions within the Council, divergent views as between the Member States, the controversial nature of the legal issues covered by the opinion and the sensitivity of the debate concerning the Commission’s proposal, it should be noted that disagreement between the Council’s members is more the rule than the exception and does not per se justify application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 102).

57 Moreover, as regards, more specifically, the alleged sensitivity of the issue in question, in so far as the mechanism provided for in the legislative proposal links EU financing to respect for the rule of law, it should be noted that allegedly sensitive subject matter cannot be confused with a sensitive document. As has already been stated in paragraph 53 above, the opinion in question addresses issues which are regularly raised during a legislative procedure, such as the legal basis, conditionality or voting system, issues which are not, moreover, particularly sensitive. Furthermore, it should also be noted that the Member States, as members of the Council, have access to that opinion, with the result that disclosure does not affect their position as such.

58 Furthermore, the Council’s argument (see paragraph 40 above), according to which a distinction must be drawn between political decision-makers, on the one hand, and technical services, such as a legal service, on the other, cannot succeed. If such an argument were accepted, the right of access to documents would effectively be undermined. In that regard, it is common practice for political decision-makers to obtain opinions from their specialist services and then to use such opinions as a form of guidance or point of reference in their decision-making.

59 In addition, it is clear from the case-law that if citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information, including, where appropriate, legal advice (see, to that effect, judgment of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 69).

60 It follows from all of the foregoing that none of the grounds of the contested decision, considered separately or as a whole, demonstrates that it was reasonably foreseeable and not purely hypothetical that full access to the requested document was capable of undermining, specifically and actually, the decision-making process at issue within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.

61 Accordingly, the first plea in law, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, must be upheld, without it being necessary to examine whether there is an overriding interest justifying disclosure of the opinion.

62 However, given that, in the contested decision, the Council also justified the refusal of access to the opinion as a whole by the exception provided for in Article 4(2) of Regulation No 1049/2001, the second plea must also be examined.

Second plea in law, alleging an error in law and misapplication of the second indent of Article 4(2) of Regulation No 1049/2001

63 In the second plea, which is divided into three parts, the applicant submits that the Council erred in law and misapplied Article 4(2) of Regulation No 1049/2001 in that it:

– misinterpreted and misapplied the second indent of Article 4(2) of Regulation No 1049/2001 and the case-law of the EU Courts by failing to take into account the provisions of primary EU law and the principle that EU legislative documents are subject to the principle of the widest possible access, while relying on vague and subjective notions not provided for in EU law to justify non-disclosure;

64 In the first part of the second plea, the applicant observes that it is clear from the Council’s description of the content of the undisclosed parts of the opinion and from what has been reported in the media that the legal analysis set out in the opinion consists of a general assessment of the compatibility of the legislative proposal with the Treaties and does not provide advice as such. Moreover, the fact that the undisclosed part is expressly entitled ‘legal analysis’ and not ‘legal advice’ is also an indication that it is not genuine advice.

65 In the second part of the second plea, the applicant notes that, even if the opinion does contain legal advice within the meaning of Article 4(2) of Regulation No 1049/2001, it follows from that regulation that legal advice given in the context of a legislative process must, in principle, be disclosed, unless it is of a particularly sensitive nature or has a particularly wide scope that goes beyond the context of the legislative process in question and contains specific advice on how to act. Furthermore, in such a case, the institution concerned must give a detailed and sufficient statement of reasons, something which the Council failed to do.

66 As regards the particularly sensitive nature, the applicant notes that, in the event that the protection of the rule of law and that of the multiannual financial framework within the European Union might be regarded as sensitive areas, this is not sufficient to establish that the opinion, by reason of its content, is of a particularly sensitive nature. It follows from the case-law that the particularly sensitive nature stems from the substance of the document concerned and not from the policy area to which it belongs. In addition, the fact that the opinion raises questions as to the lawfulness and the legal basis of the proposed regime also does not mean that the legal assessment is of a particularly sensitive nature. In that regard, the applicant points out that discussions on the law and legal boundaries are common to all legal assessments and that therefore, if the Council’s argument were to be accepted, this would deprive of its purpose the requirement that the document must be of a particularly sensitive nature.

67 With regard to the particularly wide scope that goes beyond the context of the legislative process in question, the applicant submits that the Council’s assertion that the opinion touches on issues that are potentially relevant for the purposes of other legislative procedures, such as the legal feasibility of using a qualified majority to adopt implementing acts of the Council and the legal framework applicable to budget conditionality, cannot validly be invoked in order to justify the refusal of access and is contrary to the case-law according to which legal advice on legislative matters must be subject to greater transparency than advice relating to administrative matters. If the content of the opinion was of such a general and broad scope as to be of interest for the purposes of many other legislative procedures, the conclusion should be that disclosure of that document is all the more necessary. According to the applicant, the idea that a legal assessment that relates to more than one legislative act should be subject to less transparency than if it related to one single, specific legislative act makes no sense and is not consistent with the case-law arising from the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374). The criterion set out by the Court of Justice in that judgment makes sense only if it is understood as relating to situations in which the scope of the legal advice is so broad that it also encompasses issues which are not legislative in nature. The Council has not demonstrated that the requested document had a particularly wide scope in that sense.

68 As regards the Council’s claim that the legal issues covered by the requested document are particularly contentious and present a high risk of litigation, the applicant observes that the Council does not clarify how a risk of litigation comes within the scope of the exception relating to the protection of legal advice. Moreover, the risk of litigation cannot constitute an argument such as to make the requested document sensitive in nature. Furthermore, according to the applicant, even if a risk of litigation could in itself constitute a protected interest under the exception relating to the protection of legal advice, that risk, in order to be capable of being relied on, would have to be reasonably foreseeable and not purely hypothetical. The Council, however, has not submitted any evidence whatsoever to support the conclusion that such a risk does exist, and a reference by the Council to the ‘ongoing debate’ and to its ‘previous experience in similar files’, without any clarification as to what it means by those references, is not sufficient to substantiate the existence of that risk.

69 Likewise, it is argued, the Council has not explained how disclosure of the opinion could undermine its ability to defend its position in possible court proceedings. In that regard, the applicant submits, in the first place, that the opinion has been the subject of press leaks, in the second place, that the opinion concerns the Commission’s draft proposal and does not take into account the multiple changes that have subsequently been made to that proposal, and, in the third place, that, if litigation were to ensue, the Council would not be the only defendant as the Commission’s proposal must be adopted by both the Parliament and the Council.

70 Lastly, with regard to the Council’s argument that disclosure could lead to the members of its Legal Service being personally made subject to external pressure, the applicant submits that this argument is not substantiated in any way and that it is difficult to understand how members of the Council’s Legal Service could be personally identified in the event of disclosure of an opinion adopted by that service which does not mention the names of its authors.

71 In the third part of the second plea, the applicant does not dispute the fact that the public interest in allowing public scrutiny of legislative activity does not automatically take precedence over other interests, such as the interest in receiving frank, objective and comprehensive advice, the interest in protecting the validity of legislation or the rights of defence of the institutions in judicial proceedings. However, the applicant submits, it is for the Council to balance the interests served by disclosure and those against disclosure, something which, in the light of the contested decision, it has not done. The Council merely relied on general considerations relating to the need to ensure transparency and public participation in the legislative process, rather than examining the particular interest of the public with regard to the requested document.

72 The Council disputes the applicant’s arguments and points out that its assessment of the risk in the contested decision is based on the specific content and context of the opinion.

73 In that regard, aside from the sensitive nature of the opinion already referred to in the context of the first plea, the Council takes the view, in the first place, that the legal advice, as it appears in the opinion, relates to matters of a broad scope and, in the second place, that the legal issues covered by the opinion are particularly contentious.

74 As to the broad scope of the issues addressed in the opinion, this, in the Council’s view, stems from, inter alia, the analysis of the legal feasibility of recourse to the reversed qualified majority for the adoption of implementing acts of the Council provided for in the Commission’s proposal. This, it submits, is a novel issue which has a horizontal dimension that goes beyond the legislative file in question and is of interest in respect of various files for which it is envisaged that the same method of reaching a decision will be used. The same reasoning applies with regard to the legal framework that applies to budget conditionality and its compatibility with other Treaty-based control and sanction instruments and is relevant for a number of ongoing legislative files in the context of negotiations on the multiannual financial framework.

75 As regards the risk of litigation, the Council fears, given that the issues addressed in the opinion are, in its view, in the nature of a dispute, that disclosure would impede the ability of its Legal Service to defend the legality of the legislative act in judicial proceedings. Furthermore, the risk of litigation on that file is not purely hypothetical, but extremely probable once the legislative proposal has been adopted, particularly since the proposed measure provides for a link between EU financing schemes and respect for the rule of law.

76 As regards the alleged incorrect assessment of the public interest in disclosure of the requested document, the Council considers that it has carefully balanced the interest in protecting its legal advice against the public interest in the opinion being made accessible, but, in the light of its content and the circumstances of the legislative file in question, it took the view that the need to protect the legal advice contained in the opinion tipped the balance in favour of non-disclosure. In the rejoinder, the Council observes that the applicant has not provided any element to support the existence of an overriding interest that would nevertheless justify disclosure and states in this regard that the onus is on the applicant to do so.

77 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.

78 It should be borne in mind that, according to the case-law of the Court of Justice, 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 institution concerned when it is asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in that provision (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 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 95).

79 Thus, first, the institution concerned must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice. 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. Third and lastly, if the institution concerned 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 ability to seek legal advice and to receive 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, paragraphs 38 to 44, and of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 96).

80 The Court of Justice has also held that, in so far as the interest in protecting the independence of an institution’s Legal Service could be compromised by disclosure of opinions of that Legal Service issued in the course of legislative procedures, that risk would have to be weighed up against the overriding public interests underlying 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 of that regulation. It thus 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 (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 67 and 68).

81 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).

82 In the present case, it is clear from the opinion as produced by the Council that it is in fact an opinion of the Council’s Legal Service, which was delivered in the context of a legislative process.

83 In that regard, the applicant’s argument that the opinion contains a legal analysis, as indicated by the title, and not advice as such, cannot succeed. As the Council has submitted, and as the applicant has also accepted in the reply and at the hearing, the concept of legal advice refers to the content of a document and to the nature of the information concerned and not to the manner in which a document is described (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 39, and of 15 September 2016, Herberth Smith Freehills v Commission, T‑755/14, not published, EU:T:2016:482, paragraph 47).

84 As regards 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 Council stated, in the contested decision, that the opinion ‘touch[ed] upon issues (such as, for instance, the analysis of the legal basis of the proposal or the recourse to the voting system proposed for the Council’s implementing acts) that [had] a systemic nature … beyond the context of the legislative process in question’, that ‘several issues analysed in the … opinion [were] both highly contentious and critical for the negotiations on the draft legislative act’ and that ‘the full disclosure of this document would further impede the possibility to reach an agreement on the file’, which is why the legal advice was ‘sensitive’ in the context of the ongoing discussions. The Council added that ‘the proposed instrument, if adopted, [would] have a direct impact on the allocation of funds’ and that a ‘high risk of litigation [could] be expected in this domain’, with the result that ‘disclosure … would negatively affect the ability of the Legal Service to effectively defend decisions taken by the Council before the Union courts on an equal footing with the legal representatives of the other parties to legal proceedings’.

85 As regards the question whether the opinion is particularly sensitive, it must be observed, as the applicant has done, that it is the content of the opinion itself which must be particularly sensitive. Therefore, the question whether the legislative process may in itself be regarded as sensitive, as the Council contends, is irrelevant. The fact that the legal issues raised in the context of such a process may be controversial and are the subject of disagreements or that the Legal Service has dealt with those issues does not in any way alter this.

86 As regards the particularly broad scope of the opinion, the Council merely stated in the contested decision that it covered matters such as the legal basis and recourse to the voting system proposed for Council implementing measures which were systemic beyond the context of the legislative process in question.

87 It must be held that such claims cannot confer on the opinion a particularly wide scope. In the first place, the fact that the opinion examines the appropriateness of the legal basis of the proposal for a regulation cannot be regarded as conferring on it a scope which goes beyond the legislative process in question. In the second place, as regards the voting mechanism, it is apparent from the opinion that it concerns only the proposal at issue. The reference in the opinion, by way of illustration, to other regulations with similar mechanisms does not mean that it is a document with a broad scope beyond the legislative context in question.

88 It follows that the Council has failed to show that the opinion had a wide scope.

89 As regards the existence of a risk that the Council’s ability to defend its position in court proceedings might be undermined, it should be noted that, as the Court of Justice has stated, such a general argument cannot 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).

90 In addition, it is apparent from the contested decision that the Council merely indicated that disclosure of the opinion presented a risk of undermining its ability to defend its position, during court proceedings, because the proposed measure, if adopted, would have a direct impact on the allocation of funds, with the result that it was necessary to expect a high risk of litigation in that area and that the questions raised in the opinion would be at issue in any such disputes. The Council merely mentioned, in general terms, hypothetical legal actions and failed to explain how disclosure of the opinion could harm its ability to defend itself. Similarly, the references made by the Council in its written pleadings, without further clarification, to the ‘ongoing debate’ and to its ‘previous experience in similar files’ must be rejected. Those latter factors, which, moreover, do not form part of the statement of reasons for the contested decision, are not relevant and are also incapable of showing how disclosure of the opinion would specifically present a risk that the Council’s ability to defend itself might be undermined.

91 Moreover, it is admittedly true that the opinion was the subject of press leaks, with the result that its content is known. However, that fact cannot, in itself, have any bearing on the possibility for the Council to rely on the exception relating to the protection of legal advice. In that regard, it must be noted that the production of such a document could be refused in possible proceedings before the EU Courts, if it has not been authorised by the institution concerned or ordered by the Courts (see judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 66 and the case-law cited). That being so, the fact nonetheless remains that the content of the opinion is known and that the Council has not explained how disclosure of the opinion in its entirety could compromise its defence and its freedom to adapt its line of defence in judicial proceedings, on the ground that its position had already been revealed on certain issues.

92 Finally, as regards the Council’s argument that disclosure could lead to the exposure of individual members of its Legal Service to external pressure, it must be recalled that, while the risk of external pressure may constitute a legitimate ground for restricting access to documents related to the decision-making process, the reality of such external pressure must, however, be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure (see, to that effect, judgment of 18 December 2008, Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 86). It should, however, be noted that, in the present case, the Council’s argument is not substantiated and that there is no tangible evidence in the file to establish the reality of such external pressure.

93 It follows from the foregoing that the Council has not established in detail that the opinion was of a particularly sensitive nature or had a particularly wide scope, and has therefore not justified its refusal to disclose it.

94 Accordingly, the second plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, must be upheld, without it being necessary to examine whether there is an overriding interest justifying disclosure of the opinion.

95 It follows from all of the foregoing that, since none of the justifications relied on by the Council in support of its refusal to grant access to the requested document in its entirety is well founded, the contested decision must be annulled. Consequently, it is necessary to annul the contested decision without there being any need to examine the third plea in law, raised in the alternative, and to rule on the applicant’s alternative head of claim.

96 Under Article 134(1) of the Rules of Procedure, 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 bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.

97 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 must therefore bear its own costs.

1. Annuls the decision of the Council of the European Union of 12 February 2019 refusing full access to document ST 13593 2018 INIT, containing the opinion of the Legal Service of the Council concerning the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final);

2. Orders the Council to bear its own costs and to pay those incurred by Mr Laurent Pech;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pech v Council (Access to documents - Protection of legal advice - Judgment) [2021] EUECJ T-252/19 (21 April 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T25219.html Cite as: EU:T:2021:203, [2021] EUECJ T-252/19, ECLI:EU:T:2021:203, [2021] 3 CMLR 28

Court of Justice of the European Communities (including Court of First Instance Decisions)