| EUROPEAN COMMUNITY — Institutions — Public right of access to documents — Legal advice exception — Whether automatically applicable to legal opinions in legislative process — Whether transparency an overriding public interest — Parliament and Council Regulation (EC) No 1049/2001, art 4(2)
Kingdom of Sweden and another v Council of the European Union (Joined Cases C-39 and 52/05P); [2008] WLR (D) 215
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Lenaerts, Tizzano, Arestis, Lõhmus, Schiemann, Borg Barthet, Ilešič, Malenovský and Klučka: 1 July 2008
The Council of the European Union did not have a general entitlement to refuse all requests by members of the public for access to opinions from its legal service in the context of legislative enactment. The principle of transparency was an overriding public interest capable of prevailing over a statutory reason for refusing access to a document.
The Grand Chamber of the Court of Justice of the European Communities so held on appeals from the judgment of the Court of First Instance in Turco v Council of the European Union (Case T-84/03) [2004] ECR II-4061.
Art 4(2) of Regulation 1049/2001 on public access to European Parliament, Council and Commission documents provides: “The institutions shall refuse access to a document where disclosure would undermine the protection of: … [second indent] court proceedings and legal advice … unless there is an overriding public interest in disclosure.”
The applicant asked the Council for disclosure of an opinion produced by its legal service in connection with a proposed Directive on applications for asylum in the Community. The Council refused the request on the ground of art 4(2), second indent, of the Regulation, and the Court of First Instance dismissed the applicant’s action for annulment of the refusal decision. The Kingdom of Sweden, intervener in support of the applicant, and the applicant himself, appealed.
THE COURT said that the Court of First Instance had erred in two respects. (1) It wrongly held that there was a general rule of confidentiality for legal advice relating to legislative processes. So far from the Council’s concern that disclosure of such advice could engender doubts about the lawfulness of the act concerned, the position was rather the opposite: it was a lack of information and debate which could give rise to such doubts. The art 4(2), second indent, exception sought to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice, but it had to be shown that the risk of that interest being undermined was reasonably foreseeable and not merely hypothetical. That had not been shown. (2) The Court of First Instance wrongly held that the principles of openness, democracy and accountability that underpinned the Regulation, as indicated by the first two recitals in its Preamble, could not constitute an “overriding public interest” in the meaning of art 4(2). The Council had to balance the particular interest in non-disclosure against that public interest. In view of that two-fold error, the Court of First Instance’s judgment would be set aside, and since the refusal decision had been adopted on the basis of that error, it would be annulled.
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