Public access to documents - Confirmatory application No 24/c/01/11 - Hoofdinhoud
Contents
| Documentdatum | 18-11-2011 |
|---|---|
| Publicatiedatum | 21-11-2011 |
| Kenmerk | 16327/11 |
| Van | : General Secretariat of the Council |
| Aan | : Working Party on Information |
| Externe link | originele PDF |
| Originele document in PDF |  |
COUNCIL OF Brussels, 18 November 2011 THE EUROPEAN UNION
16327/11
INF 183 API 90 JUR 541
COVER NOTE from : General Secretariat of the Council to : Working Party on Information
Subject : Public access to documents
-
-Confirmatory application No 24/c/01/11
Delegations will find attached:
• requests for access to documents sent to the General Secretariat of the Council on 22 September
2011 and registered on the same day (Annex 1)
• reply from the General Secretariat of the Council dated 12 October 2011 (Annex 2).
• confirmatory application dated 28 October 2011 and registered on the same day (Annex 3).
*******
ANNEX 1
[E-mail message sent on 22 September 2011 - 10:35]
Dear Mr Jiménez Fraile
I work for DELETED
This is a request to have access to a document under Regulation 1049/2001 i.
I would like to have access to the opinion 6865/09 dated 24 February 2009 from the legal service of the Council. The opinion focuses on the admissibility of the amendments of the LIBE Committee of the European Parliament to the Commission’s proposal COM(2008)229final i for a recast of Regulation (EC) No 1049/2001 i regarding access to European Parliament, Commission and Council documents.
I would appreciate if you could register and handle the request promptly and notify me when the request is registered. I would expect a reply within 15 working days in compliance with Article 7 of Regulation 1049/2001 i.
I thank you in advance for your help.
Best regards,
DELETED
16327/11 JT/ank 2 ANNEX 2
COUNCIL OF Brussels, 12 October 2011 THE EUROPEAN UNION
GENERAL SECRETARIAT
Directorate-General F DELETED
Press Communication
Transparency e-mail:
- Access to Documents/ DELETED
Legislative transparency RUE DE LA LOI, 175
B – 1048 BRUSSELS Ref. -11/1613-ls/mi
Tel: (32 2) 281 67 10 Fax: (32 2) 281 63 61 E-MAIL:
Dear DELETED ,
I refer to your e-mail of 22 September 2011, registered by the "Access to Documents" unit on the same day, for public access to document 6865/09 containing an opinion of the Council's Legal Service concerning the Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) and in particular the European Parliament's recommended amendments contained in the Cashman report.
I would like to recall that in 2010 1 , you requested, on behalf of DELETED, public
access to the same document. On 26 July 2010, the Council adopted a decision regarding your previous application, by which it refused public access to document 6865/09 on grounds of the protection of legal advice under the second indent of Article 4(2) and the institution's ongoing decision-making process under the first subparagraph of Article 4(3)
of Regulation (EC) No 1049/2001 i 2 , for the reasons set out in the said decision 3 . On
24 September 2010, ClientEarth brought an action against the Council before the General Court for annulment of the Council's above-mentioned decision (Case T-452/10 ClientEarth vs. Council). As you know, by order of 6 September 2011, the General Court
dismissed this action as manifestly inadmissible 4 .
1 Cf. your initial request of 17 June 2010 (ref. no. 10/1380-ls/mf) and your confirmatory
request of 8 July 2010 (ref. no. 15/c/01/10) to document 6865/09.
2 Regulation (EC) No 1049/2011 i of the European Parliament and of the Council regarding
public access to European Parliament, Council and Commission documents, see OJ L 145, 31.5.2001, p. 43.
3 Cf. document 12068/10, adopted by the Council on 26 July 2010. 4 Order of the General Court (Sixth Chamber) of 6 September 2011 in Case T-452/10
ClientEarth vs. Council (not yet reported).
16327/11 JT/ank 3 ANNEX 2
Your e-mail of 22 September 2011 constitutes a renewed request under Regulation 1049/2001 i relating to the very subject matter covered by the Council's decision of 26 July 2010. In substance, it amounts to requesting re-assessment of the Council's aforementioned decision refusing public access to document 6865/09.
The General Secretariat could not identify any change in the legal or factual situation as compared to the situation underlying the Council's decision of 26 July 2010.
The General Secretariat of the Council therefore decided to confirm the Council's earlier decision taken in regard of your previous application.
For this reason, full public access to document 6865/09 is refused.
According to Article 7(2) of the Regulation, you may submit a confirmatory application requesting the Council to reconsider its position, within 15 working days of receiving this
reply 1 .
Yours sincerely,
For the General Secretariat
Jakob Thomsen
1 Should you decide to do so, then please indicate whether you permit the Council to make
your confirmatory application fully public in the Council's Register of documents. If you do not reply or reply in the negative, then your application will be dealt with confidentially. Your reply will in no way prejudice your rights under Regulation (EC) No 1049/2001 i.
16327/11 JT/ank 4 ANNEX 3
[Confirmatory application sent by e-mail on 28 October 2011 - 15:05]
Dear Sir,
Please find attached DELETED confirmatory application concerning access to the Council legal service legal opinion.
Best regards,
*******
Brussels, 26 October 2011
GENERAL SECRETARIAT
Directorate-General F
Press, Communication, Transparency - Access to Documents/Archives
RUE DE LA LOI, 175
B – 1048 BRUSSELS
Attention: Mr THOMSEN
By email: access@consilium.europa.eu
RE: 11/1613-ls/mi - Confirmatory Application for Reconsideration of the Council
Secretary General’s Decision to Deny DELETED Application Requesting Access to a
Document Containing Legal Opinion of the Council legal service
DELETED submits this confirmatory application for reconsideration of the denial of DELETED application dated 22 September 2011 requesting access to a document. The original application requested a document containing the legal opinion of the Council’s legal service on the admissibility of the amendments recommended by the European Parliament in the Cashman report on the recast of Regulation 1049/2001 i.
On 12 October 2011, the General Secretary of the Council (“GS”) denied our request. Through this confirmatory application for reconsideration, DELETED respectfully requests that the GS reconsiders the denial and grants access to the requested document.
16327/11 JT/ank 5 ANNEX 3
SUMMARY
DELETED requested access to the Council legal service opinion on the admissibility of the amendments recommended by the rapporteur in the LIBE Committee of the Parliament to the Commission’s proposal for a recast of Regulation 1049/2001 i on public access to European Parliament, Council and Commission documents.
The disclosure of the requested document would allow the public to understand the reasons why the Council considers the majority of the amendments proposed by the Parliament aiming at widening the scope of the right of access as inadmissible as well as what the Parliament is allowed to propose under the recast procedure. It would also foster a sound discussion between the Council and the Parliament on the future of the regulation. It would therefore fulfil one of the aims of Regulation 1049/2001 i to increase openness to enable citizens to participate more closely in the decision-making process and guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.
Yet, the GS of the Council refused to disclose the requested document on the grounds that it would violate Article 4(2) second indent (protection of legal advice) and Article 4(3) of Regulation 1049/2001 i (protection of internal documents).
This confirmatory application demonstrates that the reply from the GS violates these provisions of the regulation for the following reasons:
-
-The Council blatantly ignores the relevant case-law of the Court of Justice of the EU. According to
the Court (see joined cases C-39/05 P and C-52/05P), Regulation 1049/2001 i imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a
legislative process.
-
-The Council does not demonstrate how the disclosure of the requested opinion would undermine
the protection of legal advice or seriously undermine the Council’s decision-making process and
only provides for a general and abstract reasoning which could apply to all similar documents.
-
-The Council does not weigh the different interests at stake to assess whether there is an
overriding public interest in disclosure and rejects the request without providing any detailed
reasons for withholding the requested document.
-
-The Council violates Article 4(6) of Regulation 1049/2001 i and the principle of proportionality in
not providing more comprehensive partial access to the requested document.
16327/11 JT/ank 6 ANNEX 3
1. FACTUAL AND LEGAL BACKGROUND
On 30 April 2008, the European Commission (“Commission”) adopted proposal COM(2008)229 final i for the recast of Regulation 1049/2001 i regarding public access to European Parliament, Council and Commission documents. The European Parliament (“Parliament”) adopted a first resolution containing amendments to the proposal on 11 March 2009. However, it adjourned its vote on the legislative resolution, and hence, the formal conclusion of its first reading of the legislative proposal. On 6 May 2009, at its plenary session, the Parliament decided to postpone again the vote on the legislative resolution until its next legislative term.
On 12 May 2010, Mr. Cashman, the rapporteur of the LIBE Committee of the Parliament, the leading
Committee within the recast proceeding, adopted a draft report on the Commission’s proposal 1 .
Although the Parliament had not delivered a formal opinion on the Commission’s proposal, the Working
Party on Information of the Council decided to proceed to the examination of the text of the proposal as well as the amendments of the Parliament.
In its report of 20 March 2009 2 , the Council refers to an opinion of the Council Legal Service regarding
certain amendments tabled by the Parliament. The Council considered that according to this legal opinion, the amendments tabled by the Parliament could be divided into three categories:
-
1.Amendments which, according to the analysis by the Council legal service, fall outside the scope
of Article 255 of the EC Treaty which is the legal basis of Regulation 1049/2001 i. These proposals are considered by the Council as inadmissible within the recast of the regulation.
-
2.Amendments falling within the scope of the recast, which are to be discussed further and which
may constitute the basis for negotiations within the EP.
-
3.The remaining amendments which, although within the scope of Article 255 ECT, fall outside the
object of the recast proposal. They may, according to the Council, only be included in future negotiations if they are accepted by the Commission and incorporated into a modified recast proposal.
To determine if an amendment is admissible within the recast process two legal bases must be taken into account, Article 87 of the rules of procedure of the EP and Article 255 EC now Article 15 TFEU.
1 Draft report on the proposal for a regulation of the European Parliament and of the Council regarding public access to
European Parliament, Council and Commission documents, 12 May 2010, PE439.989v01-00.
2 Note from the General Secretariat of the Council addressed to delegations, 20 March 2009, 7791/09.
16327/11 JT/ank 7
ANNEX 3
Article 87 of the Parliament rules of procedure provides that “…amendments shall be admissible within the Committee responsible only if they concern those parts of the proposal which contain changes.
However, if in accordance with point 8 of the Interinstitutional Agreement the committee responsible intends also to submit amendments to the codified parts of the Commission proposal, it shall immediately notify its intention to the Council and to the Commission, and the latter should inform the Committee, prior to the vote pursuant to Rule 54, of its position on the amendments and whether or not it intends to withdraw the recast proposal .”
The Parliament may thus not propose amendments on provisions of the Commission’s proposal that haven’t been changed in the first place unless the Commission accepts to incorporate them in a new proposal.
Article 255 ECT, now Article 15 of the TFEU, sets the legal basis of the Regulation and must therefore also be taken into account.
On 21 March 2011 the Commission adopted a second proposal COM(2011) 137 final i aligning the regulation with the requirements of the Lisbon Treaty extending the scope of the regulation to EU agencies, bodies and offices.
on 1 September 2011, the rapporteur, Mr. Cashman adopted a new report replacing the former one taking into account the latest proposal of the Commission.
On 17 June 2010 DELETED requested to have access to the Council legal service opinion (doc. 6865/09).
On the same day the Council refused access to the requested document.
On 8 July 2010, DELETED submitted a confirmatory application requesting the Council to reconsider its decision.
On 26 July 2010, the Council confirmed its decision pursuant to Article 4(2) second indent of Regulation 1049/2001 i providing for the protection of legal advice and Article 4(3) first subparagraph on the protection of internal decision-making process.
16327/11 JT/ank 8 ANNEX 3
On 24 September 2010, DELETED brought an action before the General Court seeking the annulment of the Council's decision. On 6 September 2011, the case was held inadmissible by the Court for procedural reasons.
On 22 September 2011, DELETED made a new request to have access to the Council legal opinion.
On 12 October 2011, the GS responded with an effective denial of the request confirming its decision adopted on 26 July 2010 in reply to the confirmatory application made by DELETED to access the same document made on 8 July 2010. This confirmatory application is therefore based on the arguments provided by the Council in its former decision but confirmed in its decision of 12 October 2011. Although technically a partial denial, the GS substantially denied the application by withholding all consequential information, releasing instead just the introduction of the requested document. For the rest of the document, the GS denied the request outright, arguing that the document is covered by two exceptions under Regulation 1049/2001 i, Article 4(2) second indent and Article 4(3) first subparagraph of Regulation 1049/2001 i.
The GS argues that the decision-making procedure is still at an early stage and that the legal advice is particularly sensitive in nature.
As regards the existence of an overriding public interest in disclosure, the GS considers that " the public interest in the transparency of the legislative procedure would not, in the present case, prevail over the interest in the protection of the legal advice and the institution's ongoing decision-making procedure ".
2. VIOLATIONS OF REGULATION 1049/2001 PROVIDING ACCESS TO EUROPEAN
PARLIAMENT, COUNCIL AND COMMISSION DOCUMENTS
We consider the reply from the GS to be incompatible with Article 4(2) second indent, Article 4(3) first subparagraph and Article 4(6) of Regulation 1049/2001 i. The reply also fails to comply with the findings
of the Court of Justice of the EU in joined cases C-39/05 P and C-52/05P (the “Turco case”) 3 .
Article 4(2) second indent provides that “ the institutions shall refuse access to a document where disclosure would undermine the protection of: ... legal advice ...unless there is an overriding public interest in disclosure .”
3 Joined cases C-39/05 P and C-52/05P, Sweden and Turco v Council, [2008] ECR I-0000.
16327/11 JT/ank 9 ANNEX 3
Article 4(3) first subparagraph provides that “ 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, shall 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 ”.
We will demonstrate in a first section that the reply from the GS violates Article 4(2) second indent.
We will demonstrate in a second section that the reply from the GS violates Article 4(3) first subparagraph.
We will in a third section demonstrate that the GS failed to assess whether there was any overriding public interest in disclosure.
We will in a final section demonstrate that the GS failed to comply with article 4(6) and the principle of proportionality.
2.1 VIOLATION OF ARTICLE 4(2) SECOND INDENT (LEGAL ADVICE) OF REGULATION
1049/2001
2.1.1 Compliance with the test set out by the Court in Joined cases C-39/05 P and C-
52/05P
In Joined cases C-39/05 P and C-52/05P, the Court sets out the examination to be undertaken by the Council where disclosure of an opinion of its legal service relating to a legislative process is requested. This section will examine whether the GS fulfilled the test set out by the Court.
The Court starts by stating that “ first, 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 which parts of it are actually
concerned and may, therefore, be covered by that exception 4 ”.
The GS satisfied itself that the requested document related to legal advice since it stated that “ Document 6865/09 contains an opinion of the Legal Service of the Council concerning a Proposal for a Regulation of the European Parliament of the Council …”. It then considered that the “ requested document contains legal advice, except for its paragraphs 1-3 ” and only granted access to DELETED to these paragraphs.
4 Joined cases C-39/05 P and C-52/05P, Ibid, Paragraph 38.
16327/11 JT/ank 10 ANNEX 3
Yet, these paragraphs only contain the introduction to the opinion. Granting access only to the introductory parts of the opinion and keeping the entirety of the legal advice confidential does not demonstrate that the SG examined the opinion in question in a sufficiently detailed manner before refusing to disclose it or examined it in the light of its content. There is no evidence to suggest that the SG checked whether partial access could have been given to some of the arguments in the requested document which express the opinion of the legal service on the legality of the amendments recommended in the Cashman report. The SG thus did not complete the first stage of the examination described by the Court.
Second, the Court requires the Council to “ examine whether disclosure of the parts of the document in question which have been identified as relating to legal advice ‘would undermine the protection’ of that
advice ” 5 .
“ In that regard, it must be pointed out that neither Regulation No 1049/2001 i nor its travaux préparatoires throw any light on the meaning of ‘protection’ of legal advice. Therefore, that term must be interpreted by reference to the purpose and general scheme of the rules of which it forms part.
Consequently, the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 i must be construed as aiming to protect 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 ” 6 .
The Court also makes clear that “ if the Council decides to refuse access to a document which it has been asked to disclose, it must explain, first, how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No
1049/2001 relied on by that institution 7 … ”.
The GS first states that “ the decision-making procedure is still at an early stage: the proposal is currently being examined by the European Parliament in first reading. negotiations between the European Parliament and the Council have not yet started on the proposal ". Yet, there would be no sense in requesting such an opinion or, any other document, if the legislative procedure was terminated. On the contrary, Regulation 1049/2001 i clearly aims at enabling citizens to participate in the decision-making process of the institutions which implies that documents must be disclosed while proceedings are ongoing whether at an early stage or not, particularly legislative proceedings. Recital 2 of the Regulation preamble provides that “ openness 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 ”.
5 Joined cases C-39/05 P and C-52/05P, Ibid, para. 40
6 Joined cases C-39/05 P and C-52/05P, ibid, paras. 41-43 .
7 Joined cases C-39/05 P and C-52/05P, Ibid, para. 49.
16327/11 JT/ank 11 ANNEX 3
Recital 6 adds that “ wider access should be granted to documents in cases where the intuitions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process ”.
Additionally, in the Turco case, the Court considered that there was no “ general need for confidentiality
in respect of advice from the Council’s legal service relating to legislative matters 8 ” that was ongoing
and that such advice had to be disclosed. The Council may thus not rely on this argument to refuse disclosing the requested document.
The GS then argues that “ the legal advice contained in the document is particularly sensitive in nature" as it bears on " legal issues regarding both the procedure and the substance raised in the European Parliament's first reading of the Commission's recast proposal, notably the split of the European Parliament's vote on the amendments and the legislative resolution and the scope of the recommended amendments ".
First, the fact that the advice bears on procedural and substantial issues is not a reason to withhold it as nothing in Regulation 1049/2001 i distinguishes between the two types of legal issues on which an advice is provided.
Second, the fact that the questions examined in the advice are questions raised in the context of the Parliament’s first reading of the Commission’s proposal stresses the fact that the document should be public as the first reading stage is part of a legislative process. As explained earlier, Regulation 1049/2001 i makes clear that documents within these processes should be easily accessible. The Court also stresses this point in the Turco case. The Court draws from recital 2 and 6 of the Regulation’s preamble to conclude that “ openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of 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.
It is also worth noting that, under the second subparagraph of Article 207(3) EC, the Council is required to define the cases in which it is to be regard as acting in its legislative capacity, with a view to allowing greater access to documents in such cases. Similarly, Article 12(2) of Regulation No 1049/2001 i acknowledges the specific nature of the legislative process by providing that documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for Member
States should be made directly accessible 9 . ”
8 Ibid, 57.
9 Ibid, paras. 46-47.
16327/11 JT/ank 12 ANNEX 3
It is thus clear that the Council may not rely on the fact that the questions analysed in the requested opinion will be discussed within the first reading stage of the procedure to deny access to the said opinion.
Third, the first reading stage is decisive as it determines the amendments that will be discussed and negotiated with the Council. It is thus crucial that the public be informed of what is going on at that stage of the procedure and be able to participate in the decision-making process. Members of the public, NGOs and individuals, may decide to draw the attention of MEPs and/or of certain delegations of the Council on issues of their choice.
Fourth, the fact that the legal issues raised in the opinion are going to be the subject of discussions within the Council and between the Council and the Parliament shows that these issues are constitutive of debate between the two institutions on what documents the reviewed regulation should provide access to and deserve therefore to be public. Discussions between institutions and within an institution on the future of a regulation should not be confidential and led behind closed doors particularly when the regulation in question relates to transparency. On the contrary, to promote such privacy in proceedings, as the Council does, directly contravenes the principles of openness, transparency and accountability of the institutions underlying Regulation 1049/2001 i.
The GS further argues that disclosure of the advice would be " likely to prompt divergences with the European Parliament and could negatively impact on the upcoming negotiations ". and that " if the internal legal advice analysing delicate issues relating to the European Parliament's recommended amendments were made public, and thus accessible to the European Parliament, it could lead the Council to take into account the risk of a possible disclosure in the future and decide not to request written opinions from its Legal Service” .
The delicate character of the issues analysed by the legal service in the requested opinion should not be a criteria used by the Council to assess whether the requested opinion should be publicly accessible. On the contrary, the more delicate the questions are, the more interest there is for the public, particularly for lawyers DELETED, in disclosure.
The GS does not explain why the Council would decide not to request written opinions anymore from its legal service provided they were public.
We thus have to guess what the reasoning underlying the SG’s explanation is. In the Turco case, the Council argued that the disclosure of legal advice from the Council legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned.
16327/11 JT/ank 13 ANNEX 3
However, the Court rejected this plea holding that:
“… it is precisely openness in this regard 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.
Furthermore, the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the Community legislature because the Council’s legal service had given an unfavourable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed.
Consequently, to submit, in a general and abstract way that there is a risk that disclosure of legal advice relating to legislative processes may give rise to doubts regarding the lawfulness of legislative acts does not suffice to establish that the protection of legal advice will be undermined for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001 i and cannot, accordingly,
provide a basis for a refusal to disclose such advice. 10 ”
The GS could not rely on that argument to deny access to the requested document.
In the Turco case, the Council also argued that the independence of its legal service would be compromised by possible disclosure of legal opinions. However, the Court also rejected that plea in stating that “ that fear 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 i. As is apparent from paragraph 42 of this judgment, that exception seeks specifically to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice.
However, in that regard, the Council relied before both the Court of First Instance and the Court on mere assertions, which were in no way substantiated by detailed arguments. In view of the considerations which follow, there would appear to be no real risk that is reasonably foreseeable and not purely hypothetical of that interest being undermined.
As regards the possibility of pressure being applied for the purpose of influencing the content of opinions issued by the Council’s legal service, it need merely be pointed out that even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent on the
11
Council to take the necessary measures to put a stop to it ”.
10 Ibid, paras 59-60.
11 Ibid, paras 62-64.
16327/11 JT/ank 14 ANNEX 3
The same reasoning must be applied here.
The GS concludes that “ This would prejudice the Council’s ability, in general, to carry out its tasks as co-legislator, by depriving it of an important instrument which ensures the compatibility of its acts with Community law of the Union and would undermine the Council’s interest in requesting and receiving frank, objective and comprehensive legal advice which is supposed to be internal to the institution.”
First, the GS does not explain how the disclosure of an opinion from the Council legal service would prevent the Council from carrying out its tasks. Second, the GS states that it would “ in general ’” prejudice its ability “ to carry out its tasks”. The meaning of the words “in general” is rather obscure and too broad to constitute a sound reason to refuse access. Third, the disclosure of an opinion from the Council legal service would in no way prevent the Council from requiring advice to its legal service to ensure the compatibility of its acts with EU law. Making public an opinion from the Council legal service which confirms the compatibility of one of the Council’s acts with EU law would not be a threat to the protection of legal advice. On the contrary, citizens would be reassured to know that one of the Council’s acts comply with EU law. This would also enable the EU citizens to follow the decision-making process and understand it better.
The adoption of a negative opinion by the Council legal service on a proposed legislative act under discussion subsequently adopted does not either constitute a reason to refuse disclosing the legal opinion. The Court in the Turco case held that “ as regards the Commission’s argument that it could be difficult for an institution’s legal service which has initially expressed a negative opinion regarding a legislative act in the process of being adopted subsequently to defend the lawfulness of that act if its opinion had been published, it must be stated that such a general argument cannot justify an exception
12
to the openness provided for by Regulation No 1049/2001 i .”
This finding of the Court applies as well to the argument used by the GS that " disclosure to the public of an internal legal advice in the Council's decision-making process would seriously undermine the Legal Service's capacity in the future to present and defend, free from all external influences and on an equal footing with the legal representatives of the other parties, the Council's position in court proceedings, a position which may differ from the one previously recommended by the Legal Service ."
12 Ibid, para 65.
16327/11 JT/ank 15 ANNEX 3
Finally, on the risk that the independence of the Council legal service to be compromised by disclosure of the legal opinions, the Court reiterated its requirement that such assertions made by the Council should be substantiated by detailed arguments to be accepted and that the risk mentioned should be
reasonably foreseeable 13 and not purely hypothetical which is clearly the case here.
It follows that the GS submits in a general and abstract way that there is a risk that disclosure of legal advice relating to legislative processes would undermine the protection of legal advice. The GS hence does not demonstrate that there is a real risk that is reasonably foreseeable and not purely hypothetical that the protection of the legal advice would be undermined. It does not either establish that public access to the opinion would specifically and effectively undermine the protection of legal advice. The GS thus fails to provide detailed reasons for withholding the requested document as it only gives a general reason which could apply to all legal opinions from the Council legal service.
Yet, if “ it is, in principle, open to the Council to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. However, it is incumbent on the Council to establish in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has
been asked to disclose ” 14 .
However, the GS does not in any way examine whether the general reasons invoked are applicable to the specific legal opinion on the admissibility of the Parliament’s amendments to the recast proposal of the Commission. As explained above, the delicate character of the questions raised and the fact that they are subject of discussions within the Council and between the Council and the Parliament are not reasons to justify confidentiality under Article 4(2) second indent. Indeed, these arguments apply to most of legal opinions drafted by the Council legal Service within a legislative process. The examination of the Council is thus not carried out in respect of the document requested as it does not explain how the disclosure of the legal arguments according to which amendments recommended in the Cashman report are inadmissible would undermine the protection of the legal advice provided to the Council and would thus prevent it from seeking frank, objective and comprehensive advice.
The arguments of the GS thus do not suffice to establish that the disclosure of the requested document would undermine the protection of legal advice for the purposes of the second indent of Article 4(2) of Regulation 1049/2001 i.
13 Ibid, para 62-64.
14 Ibid, para 50 .
16327/11 JT/ank 16 ANNEX 3
2.2 VIOLATION OF ARTICLE 4(3) FIRST SUBPARAGRAPH (INTERNAL DOCUMENTS) OF REGULATION 1049/2001
2.2.1 Article 4(3) is not applicable to legal advice provided within legislative process
The GS cannot invoke the exception set out under Article 4(3) first subparagraph of Regulation 1049/2001 i in addition to the one provided under Article 4(2) second indent of the Regulation. In the Turco case, the Court considered that the legal advice from an institution’s legal service provided within a legislative process should be publicly accessible under Article 4(2) second indent unless of a particularly sensitive nature or having a wide scope that goes beyond the context of the legislative process. In the latter case, it is incumbent on the institution concerned to give a detailed statement of
reasons for a refusal 15 . The Court thus impliedly ruled that Article 4(2) second indent is the relevant
provision of Regulation 1049/2001 i which applies to the disclosure of institutions’ legal advice relating to legislative procedures. It follows that if legal advice from a legal service of an institution shall be deemed publicly accessible under Article 4(2) second indent, it cannot be refused under another provision of the Regulation, namely Article 4(3). This would directly contravene the findings of the Court and would empty Article 4(2) second indent of its substance.
In addition, if Article 4(3) of the Regulation was to apply to legal advice provided within legislative processes, Article 4(2) and Article 4(3) would refer to each other specifying how the two provisions were supposed to apply without contradicting each other.
The access provided under Article 4(2) in the case of legislative process should thus not be hampered under Article 4(3) of the Regulation.
The argument of the GS must thus be rejected.
2.2.2. The public accessibility of the opinion would not seriously undermine the Council’s decision-making process
Even if Article 4(3) of Regulation 1049/2001 i applied to the disclosure of the Council legal service advice, the disclosure of the requested document would not undermine the Council’s decision-making process.
15 Ibid, para. 69.
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The GS argues that “ … in view of the fact that the decision-making process is still at an early stage of the legislative procedure where the European Parliament has not yet adopted its position at first reading..., disclosure of the opinion of the Legal Service would adversely affect the efficiency of negotiations by impeding internal discussions of the Council on the European Parliament's draft amendments and would compromise the upcoming negotiations between the Council and the European Parliament on the proposal. In particular, when the aim or one of the aims of the legal advice is to help the Council in discussing issues with the European Parliament, making public such internal legal advice - and, therefore, accessible to the European Parliament - does not seem possible ”.
However, the GS does not demonstrate how that would be the case. The GS does not demonstrate how the public accessibility of the opinion would prevent the Council from having internal discussions on the legality of the proposed amendments and from negotiating with the Parliament.
Moreover, as already explained above, the fact that the decision-making process is ongoing and still at an early stage is specifically the reason why the public should have access to the opinion of the Council legal service. Granting access to the legal opinion only once the decision-making process is too advanced or terminated would not allow the public to participate in this process and would thus directly contravene the principles underlying Regulation 1049/2001 i and provided in recitals 2 and 6 of the Regulation’s preamble already referred to above.
The fact that the opinion has been drawn up in the course of a procedure for the adoption of a legislative act also stresses the need for its public accessibility.
Besides, the GS confuses two things: the opinion of the Council legal service on the admissibility of the amendments under the recast procedural rules of the Parliament and under Article 15 TFEU which is a purely legal question, on the one hand, and the negotiating/strategic position of the Council within the recast process, which is a political question, on the other hand. The discussions within the Council on the strategy to adopt within the recast and the negotiations between the Council and the Parliament which would need to be confidential, could still remain confidential. It is the opinion on the legal issues raised within the recast process, the admissibility of the amendments under Article 87 of the Parliament Rules of Procedure and Article 15 TFEU, which is requested by DELETED and which should be disclosed.
The public accessibility of the requested advice would thus in no way “ adversely affect the efficiency of negotiations by impeding internal discussions of the Council on the legality of the proposed act and would compromise the conclusion of an agreement between the Council and the European Parliament on the dossier ”.
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Making the legal advice accessible to the Parliament would not undermine the decision-making process of the Council. On the contrary, providing the Parliament with the reasons why the Council considers some of the amendments proposed in the Cashman report as inadmissible would lay down the right basis for a sound discussion between the two institutions. It is especially the case if, as the Council claims, one of the aims of the legal advice is to help the Council in discussing issues with the Parliament. Moreover, it seems to be difficult to discuss something without knowing its content. One can thus wonder how the Parliament could enter into a discussion with the Council on the issues analysed by the legal service without having access to the legal opinion. Furthermore, provisions of legal texts may be subject to different interpretations and interpretations should be debatable.
The GS thus does not demonstrate that its decision-making process would be undermined, let alone that is would be seriously undermined as required by Article 4(3) first subparagraph, by the disclosure of the requested opinion. Provided the requested legal opinion was public, the Council could still adopt its decisions without any serious obstacles or difficulty. And according to the Court in the Turco case “ as regards the possibility of pressure being applied for the purpose of influencing the content of opinions issued by the Council’s legal service, it need merely be pointed out that even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent to the Council
to take the necessary measures to put a stop to it 16 .” The GS cannot thus refer to a potential external
pressure on its legal service to refuse access.
It follows that the GS did not carry out an examination which is specific in nature nor did it assess whether access to the requested document would specifically and effectively undermine the Council’s decision-making process. The risk of the Council’s decision-making process being undermined was thus purely hypothetical and not reasonably foreseeable.
2.3 VIOLATION OF ARTICLE 4(2) LAST INDENT AND ARTICLE 4(3): THE EXISTENCE OF AN OVERRIDING PUBLIC INTEREST
The Court, in the Turco case, outlines the arguments the Council has to take into account when assessing whether there is a public interest in disclosure under Article 4(2) second indent of Regulation 1049/2001 i. The Council also has to assess whether there is such an overriding public interest under Article 4(3).
16 Ibid, para. 64.
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The Court provides that “ 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.
In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001 i, 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 clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of the preamble to Regulation No 1049/2001 i, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of 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.
It is also worth noting that, under the second subparagraph of Article 207(3) EC, the Council is required to define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in such cases. Similarly, Article 12(2) of Regulation No 1049/2001 i acknowledges the specific nature of the legislative process by providing that documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in
or for the Member States should be made directly accessible ” 17 .
It is clear that the GS does not fulfil the test set out by the Court. The SG did not ascertain whether there was an overriding public interest in disclosure, justifying disclosure, despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would thereby be undermined. The GS did not balance the protection of legal advice against the public interest in the document being made accessible in the light of the advantages stemming from increased openness.
The GS only ascertained that it had " carefully weighed the public interest in the disclosure of the requested document against the public interest in the protection of legal advice and the institution's decision-making process ..". And it concluded that “ the public interest in the transparency of the legislative procedure would not, in the present case, prevail over interest in the protection of the legal advice and the institution's ongoing decision-making procedure ”.
The GS thus does not explain why or how the protection of its legal service opinion prevailed over transparency, openness and increasing democracy and its accountability to the citizens.
17 Ibid, paras. 44-47
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The GS did not either explain how Article 12(2) of Regulation 1049/2001 i applies in this case.
Yet, because the Council legal service opinion will form one of the legal bases of Regulation 1049/2001 i and enshrine considerations underpinning legislative actions, wider access must be afforded.
The Court further argued that “ in any event, in so far as the interest in protecting the independence of the Council’s legal service could be undermined by that disclosure, that risk would have to be weighed up against the overriding public interests which underlie regulation No 1049/2001 i. …. 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 scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of Preamble to Regulation No 1049/2001 i.
It follows from the above considerations that Regulation No 1049/2001 i imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process.
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 .” 18
As mentioned above, the GS argues that the legal advice contained in this document is of a particularly sensitive nature . However, neither the fact that " delicate " issues are analysed in the opinion nor the fact these questions are raised in the context of the Parliament’s first reading of the proposal demonstrate that the opinion is of a particularly sensitive nature. Indeed, a considerable number of legal opinions from the Council legal service provided within a legislative process are necessarily and by definition provided in the context of the Parliament first reading of a Commission’s proposal.
The opinion does not have either a particularly wide scope that goes beyond the context of the legislative process in question as the opinion specifically bears on the admissibility of the amendments proposed by the Parliament. It is thus particularly on the legislative process in question that is the recast of Regulation 1049/2001 i.
18 Ibid, paras 67-69 .
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The GS should thus consider that there is an overriding public interest in disclosure.
Moreover, even if the legal opinion was “ of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question,” it would “be incumbent on the [council] .. to give a detailed statement of reasons for such a refusal.” Yet, it follows from all the above considerations that the GS did not give such a detailed statement of reasons for its refusal.
Disclosure of the requested legal opinion would enable the public to be part of the discussion on the type of amendments which may be proposed by the Parliament within the recast procedure. The admissibility of the amendments proposed by the Parliament within the recast procedure is subject to two sets of rules, Article 87 of the Rules of Procedure of the Parliament and Article 15 of the TFEU, former Article 255 EC, which is the legal basis of Regulation 1049/2001 i. Whether some amendments of the Parliament go beyond the scope of article 15 TFEU or of the recast process as argued by the Council’s legal service may not be crystal clear for all amendments and therefore be the subject of discussions. Moreover, the amendments tabled in the Cashman report will be the basis for discussion with the other Committees of the Parliament and will thus determine the amendments which will be tabled by the Parliament as a whole. The decision of the Council on their admissibility is thus critical for the future of the Regulation on access to documents. The Council should thus not be able to decide on its own to reject the amendments of the Parliament, in this case, almost the majority of them, without submitting its analysis to public scrutiny.
The requested legal opinion is not only for internal use within the Council but on the contrary provides for an interpretation of the legal rules that apply to the recast procedure. This information is very valuable for the public in general to understand the recast procedure better and particularly for people, like lawyers and NGOs, working on the decision-making process of the EU institutions. It is also very useful for the Parliament which needs to know what amendments will be considered as inadmissible by the Council within this type of procedure for future recasts.
The process will result in the new regulation on access to documents which provides a right to the public, the right to have access to documents held by EU institutions. The right of the public to participate in the recast of the regulation should thus be facilitated by the institutions.
Despite this, the Council decides to conduct discussions behind closed doors which invariably results in less democracy and less public participation in the decision-making process. Such opacity contravenes the principles underlying Regulation 1049/2001 i, enshrined in recital 2 and 6 of the Regulation’s preamble and of article 15 TFEU.
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It follows from all the foregoing that there is an overriding public interest in disclosing the requested legal opinion for the purposes of Article 4(2) second indent and Article 4(3) of Regulation 1049/2001 i.
2.4 VIOLATION OF ARTICLE 4(6) OF REGULATION 1049/2001: PARTIAL ACCESS
Article 4(6) of Regulation provides that “ if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released ”.
The GS decided to grant access only to the introductory parts of the document and to keep the whole reasoning of the legal service confidential.
The GS thus failed to comply with the principle of proportionality and Article 4(6) of Regulation 1049/2001 i by refusing partial access to the legal opinion.
CONCLUSION
With this confirmatory application for reconsideration, the applicant respectfully requests that the General Secretary grant access to the requested document.
DELETED
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