Inhoudsopgave van deze pagina:
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· A request for access to documents sent to the General Secretariat of the Council on 21 January 2009 and registered on the same day (Annex 1).
· A reply from the General Secretariat of the Council dated 23 February 2009 (Annex 2). · A confirmatory application dated 9 March and registered on 10 March 2009 (Annex 3).
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ANNEX 1
[E-mail message sent on 21.01.2009 - 10:44]
This e-mail has been sent to access@consilium.europa.eu using the electronic form available in the Register application This electronic form has been submitted in EN
Title/Gender: Mr - Mr
Last Name: Sohn
First Name: Klaus-Dieter
E-Mail: Sohn@cep.eu
Occupation:
On behalf of:
Address:
Telephone:
Mobilephone:
Fax:
Requested document(s): 10673/02
1st preferred linguistic version: DE - German
2nd preferred linguistic version: EN - English
COUNCIL OF Brussels, 23 February 2009 THE EUROPEAN UNION
Mr Klaus-Dieter Sohn e-mail: Sohn@cep.eu 09/0127-csm/jj GENERAL SECRETARIAT
Directorate-General F
Press
Communication
Protocol
Transparency
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-Access to Documents
RUE DE LA LOI, 175
B 1048 BRUSSELS
Tel: (32 2) 281 67 10
Fax: (32 2) 281 63 61
E-MAIL:
Dear Mr Sohn, Your request of 21 January 2009 for access to document 10673/02 has been registered by the "Access to Documents" unit. Thank you for your interest. The General Secretariat of the Council has examined your request on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, 31.5.2001, p. 43) and the specific provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure (Council Decision No 2006/683/EC, Euratom, Official Journal L 285, 16.10.2006, p. 47). On 11 February 2009, the time-limit for replying to your application was extended by 15 working days. Having examined the request, the General Secretariat has come to the following conclusion: Document 10673/02 contains an opinion of the Legal Service of the Council concerning a Proposal for a Regulation of the European Parliament and of the Council on genetically modified food and feed. The requested document contains legal advice, except for its paragraphs 1 to 3. Paragraphs 13 to 20 of the requested document contain an analysis of the Legal Service of the limits of the powers of the Community legislator under Article 95 TEC to adopt measures such as those contained in the Commission proposal. This delicate question has been the subject of discussions in the Council in a number of legislative proposals and has also been addressed by the Court of Justice. The said paragraphs of the document are particularly sensitive in nature in view of the evolution of the state of Community law, and their disclosure would undermine the protection of legal advice by making known to the public an internal opinion of the Legal Service, intended for the members of the Council, on the legality of the legal act to be adopted. The possibility that the legal advice in question be disclosed to the public may lead the Council to display caution when requesting written opinions from its Legal Service, since it could find itself in a situation where it would need to defend the decision it has taken against a - potentially critical - advice given by its Legal Service.
1
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Yours sincerely, For the General Secretariat Ramón Jiménez Fraile Enclosure
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.
ANNEX 3
[Confirmatory application sent by e-mail on 9 March 2009 - 17:25]
Sirs,
I am writing to request a review of Council decision 09/0127-csm/jj of 23 February 2009 partially
rejecting my application for access to Council document 10673/02. The grounds for my request are
set out in the attached application.
I agree to the confirmatory application being published in the Council's register of documents.
Yours faithfully,
Klaus-Dieter Sohn
for reconsideration of the decision of 23 February 2009 partially rejecting the request made on
21 January 2009 for access to Council document 10673/02.
A. Admissibility
Every citizen of the Union has a basic right of access to all European Parliament, Council and
Commission documents (Article 1, Regulation (EC) No 1049/2001). A legal condition of access is
the presentation of an application. On 21 January 2009 I submitted an application for access to
Council document 10673/02 which was partially rejected. Under Article 7(2) of Regulation (EC)
No 1049/2001, the person concerned may request that the decision refusing access be reconsidered;
this confirmatory application has to be made within fifteen days of receiving the decision on the
first application (Article 7(2), Regulation (EC) No 1049/2001). I received the partial rejection of my
application on 23 February 2009. The deadline for submission of the confirmatory application is
therefore 10 March 2009 at the earliest. Regarding the form of the confirmatory application, the
European legislator says no more than that it is to be made in writing and sent by post, fax or e-mail
(Article 6 of Annex II to the Council Decision of 15 September 2006 adopting the Council's Rules
of Procedure).
This confirmatory application complies with the formal and time requirements for submission and
should therefore be admissible.
B. Grounds
I. The facts
On 21 January 2009 I requested access to Council document 10673/02; this is a Legal Service
opinion of 4 July 2002 arising from negotiations in the Council on the proposal for a Regulation of
the European Parliament and of the Council on genetically modified food and feed
[COM(2001)425] of 25 July 2001. On 14 October 2002 the Agriculture and Fisheries Council
discussed the amended proposal for a Regulation of the European Parliament and of the Council on
genetically modified food and feed [COM(2002) 559] of 8 October 2002 as a "B" item on its
agenda.
On 28 November 2002 the Agriculture and Fisheries Council reached political agreement on a
common position, which was adopted at that Council's meeting on 17 March 2003. Following the
second reading by the European Parliament and the Commission's opinion on the European
Parliament's amendments, the Agriculture and Fisheries Council adopted the proposal at second
reading at its meeting on 22 July 2003. The Regulation was signed by the Presidents of the
European Parliament and of the Council on 22 September 2003 and published as Regulation (EC)
No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically
modified food and feed in the Official Journal of the European Union on 18 October 2003 (OJ L
268, 18.10.2003, p.1); it has been applied since 18 April 2004.
The Regulation was based on the Treaty establishing the European Community, and in particular
Article 37, Article 95 and Article 152(4)(b) thereof. No reasons were given for basing the proposal
on those provisions either in the Commission's original proposal of 25 July 2001 [COM(2001) 425]
or in its amended proposal of 8 October 2002 [COM(2002) 559]. The only Council document to
address the choice of legal basis is 10673/02, to which I have requested access. This much is clear
from the parts of the document released to me in the letter of 23 February 2009:
" 2. The purpose of the above proposal for a Regulation is to lay down the conditions to
which the marketing of genetically modified food and feed in the Community will be subject.
To achieve this aim, the proposal provides, firstly, for quality, safety and labelling standards
which must be met by the products in question. Secondly, it provides for the setting up of a
procedure for the application for, and issuing of, authorisations, centralised at Community
level, with the Commission authorising the marketing of each product in the light of an
evaluation carried out by the European Food Safety Authority. The Commission has based the
proposal on Articles 37, 95 and 152(4)(b) of the EC Treaty."
"3. Established case-law shows that the choice of legal basis must be based on objective factors which are amenable to judicial review; those factors include in particular the aim and
content of the measure. This note will therefore examine the proposed provisions from the
point of view of their aim, on the one hand, and their content, on the other."
EC Treaty, is clearly to be found in the undisclosed sections of the Legal Service opinion.
"11. A distinction must be made between the provisions of the proposal which relate to
agriculture and those which refer to processed products intended for human consumption."
"12. In fact, Articles 37 and 152(4)(b) of the EC Treaty give the legislator a great deal of
freedom in choosing the means of achieving the aims covered by the common agricultural
policy, and permit the adoption both of measures to harmonise national provisions and of
measures which go beyond the harmonisation of national provisions. So it is possible to
conclude that, from the point of view of their content too, the proposed provisions which
apply to agricultural products or products closely associated with agricultural production
are covered by Articles 37 and 152(4)(b)."
I am thus being denied access to the discussions on the applicability and limits of Article 95 of the
EC Treaty and on products other than agricultural products.
By way of justification for your partial rejection of my application and your decision to release only
extracts of the Legal Service opinion, you state that there is an overriding public interest in the
document not being disclosed.
You present four arguments as to why the public interest in non-disclosure should prevail.
Firstly you argue that Legal Service opinions are internal documents providing members of the
Council with information on the legality of a proposed legal act and that disclosure of that
information could undermine the development of the Community's legal system.
Secondly, you maintain that the Council's work could be adversely affected if a potentially critical
Legal Service opinion on a legal act were to be disclosed to the public, since the Council might find
itself having to defend a decision taken against such advice.
Thirdly, you argue that the work of the Legal Service and its freedom from external influence could
suffer from the public pressure that could arise from disclosure of its opinions.
Lastly, you contend that the Legal Service would find it harder to defend Council decisions before
the Community's courts if its opinions on those decisions were known in advance.
II. Considerations of principle
I find myself unable to accept your reasoning, since I feel that it does not demonstrate an overriding
public interest in confidentiality vis-à-vis my basic right of access to Council document 10673/02.
I am therefore requesting a review of your partial rejection of my request, on the following grounds:
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1.Access to European Parliament, Council and Commission documents is governed by
Regulation (EC) No 1049/2001 of the European Parliament and of the Council. The Regulation is
based on the principle of the greatest possible openness, that access to documents should be denied
only in exceptional, duly substantiated cases. The legislature thus posits that the right of access to
its documents will, in principle, outweigh the public interest in keeping them confidential.
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2.An overriding public interest may arise only on the grounds specifically referred to in
Regulation No (EC) 1049/2001. In your letter, you adduce the exception in Article 4(2) of the
Regulation as grounds for your decision. According to that provision, the institutions are to deny
access where the protection of legal advice would otherwise be undermined.
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3.The exception in Article 4(2) cannot apply to each and every instance of legal advice. Otherwise
the principle of openness established in Article 1(2) of the EU Treaty would be a dead letter. Each
case therefore has to be considered on its merits, and the conclusion reached must demonstrate an
overriding public interest in confidentiality which outweighs the principle of openness laid down in
primary law.
III. Consideration of the individual case
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1.As regards the first reason you adduce, there is clearly a conflict of aims between the desire to let
the Community legal system develop without interference and the public interest in taking part in
that development.
(a) The development of Community law is not just a purely formal matter. On the contrary, it is
predicated on public acceptance and trust in the legality of the European legislative process. This
holds especially true of law-making in Council. In the Member States, ministers act as part of the
executive and, as such, are subject to scrutiny by an elected parliament. In the Council, by contrast,
they are not subject to scrutiny by national parliaments.
The Council does have an opposite number, in the shape of the European Parliament, which is
supposed to fulfil the function of national parliaments at European level. However, there are a large
number of Council legal acts in which the European Parliament is not involved through the co-
decision procedure, showing that its parliamentary oversight is not as highly developed as in the
Member States. The public therefore needs to have a particularly firm trust in the European
legislature generally and the Council in particular. However, the requisite public trust in the legality
of the actions of the European legislature cannot be built up if even requests for Legal Service
opinions can be met with a blanket refusal. This is especially true where an opinion comes to a
different conclusion than the Council. Whether this is so in the present case can be neither
confirmed nor denied, for want of openness. You have failed to take account of this particular
aspect of trust in your reasoning. European integration stands and falls with public acceptance of
Community law. The only way to promote such acceptance is through maximum transparency. The
kind of debate which the public is used to in the national legislative process is only possible if there
is such openness. In conclusion, your first argument is unacceptable because, contrary to your
assertions, it does more harm than good to the development of the Community legal system. The
public's place is within the legislative process, not kept out of it.
(b) The development of any legal system is always a challenge for legal scholars. This is
particularly true of the Community legal system, as it takes precedence over national law. The
specialist literature makes an important contribution to its development and should be taken into
account by the Council Legal Service too. In return, legal scholars should make it their business to
study the Legal Service's opinions. By refusing to disclose Legal Service opinions you are
inevitably thwarting the academic exchange of ideas, preventing scholarly dialogue and thus
hindering the development of the Community legal system.
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2.Secondly, you state that the Council might find itself obliged to defend its decisions if it had
acted against the advice of its Legal Service. In other words: you do not want to have to justify
legislative decisions and be held publicly accountable for them. You thereby fail to appreciate
fundamental principles of democracy. Living democracy means that citizens accept all the decisions
taken by the legislative bodies; this is only possible if those decisions have to be justified and can
then be scrutinised and discussed.
Openness in relation to legislative action is thus an important contribution to strengthening
democracy. Only if there is the greatest possible openness can the public understand and challenge
all the information on which a legal act is based. It is precisely the ability to obtain information on
the legislative process that enables citizens to exercise their democratic rights. I therefore believe
your second argument to be wrong too.
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3.Your third argument, that the work of the Legal Service would be at risk if its opinions were
publicly accessible, is a blanket assertion. You fail to demonstrate either that this has been the case
in the past, or why it should be so in the case in point. The legal act in question has been in force
since 18 April 2004. No legal challenge to the Council's action has yet been mounted in the
Community Courts. Nor has there ever been any allegation in a Community court that the Council
departed from a Legal Service opinion. However, if neither the Council nor the Legal Service
opinion have been subject to public criticism, the work of the Legal Service cannot be at risk.
Leaving aside the question of whether the work of the Legal Service may be at risk, I note that in
this case at least, the risk to which you refer has not arisen. I therefore remain unconvinced by your
third argument.
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4.Your fourth, and final, argument is that the Legal Service has to defend Council decisions in the
Community courts. For this reason it is allegedly unacceptable for its opinions on a specific legal
act to be disclosed. Looking at this argument more closely, there are two possibilities:
(a) The Legal Service opinion is in line with the decision subsequently taken by the Council. The
problem you allude to would not arise. In this case openness would even be helpful, since it would
underline from the outset that the Council decision was based on advice from the Legal Service. In
the vast majority of cases this would make a legal challenge to the act unlikely, but if it did
materialise, the Legal Service would be obliged to defend its own advice as well. A better
motivation cannot be imagined, and why it should militate against openness is unclear. Where the
Council and the Legal Service are in agreement, your argument for withholding access to
Legal Service opinions does not hold.
(b) The Legal Service opinion is contrary to the Council decision. In this case the Legal Service
would have to argue against its own advice and thus its own view when defending the Council
decision in a Community court. The conflict that would thus arise within the Legal Service is just as
likely to put its work at risk as disclosure of the opinion as claimed in your third argument. If this
pressure on the Legal Service and the risk to its work is to be avoided, then in future its opinions
will have to be in line with the Council's wishes. Otherwise you will be unable to prevent pressure
on the Legal Service, as shown above, even by denying openness.
In addition, your arguments are here too of a general nature, not backed up by reference to
individual cases. You fail to mention any case of the Legal Service refusing to defend the Council
in a Community court on the grounds that it takes a different view from the Council. You fail to
mention any proceedings in a Community court in which a Council decision was overturned
because the Council had acted against Legal Service advice. Nor will you find any such case,
because the Community courts base their decisions on the primary and secondary law of the
Community, not on whether the Council may have acted against the advice of its Legal Service
when taking a decision. Your fourth argument thus also fails to convince.
IV. Provisional conclusion
Regulation (EC) No 1049/2001 lays down a basic duty to disclose Legal Service opinions.
Exceptions may only be made if the opinion at issue is of a particularly sensitive nature or
particularly wide in scope. In such a case a detailed statement of reasons would have to be given.
You have not given a detailed statement of reasons in my particular case, as you have relied on
blanket assertions. In addition, the substance of your reasons for refusing my application did not
ring true.
V. Jurisprudence
Pursuant to the ruling of the European Court of Justice (ECJ) in joined cases C-39/05 P and
C-52/05 P (Sweden and Turco v. Council), an application for access to a document of an institution
the ECJ does not confine itself to a particular institution cannot be refused for the reasons given
to Mr Turco in the disputed case.
The reasons given in my case are exactly the same as those in the contested case. On this ground
alone, it is clear that the reasons I have been given do not suffice to deny me access to the requested
document, at least according to the ECJ ruling, irrespective of my detailed arguments.
C. Conclusion
The part of decision 09/0127-csm/jj of 23 February 2009 refusing access was issued in error. The
application for access to Council document 10673/02 should have been granted in full, since the
interest in access to Council document 10673/02 outweighs the public interest in denying access.
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