Toegang van het publiek tot documenten - Confirmatief verzoek 05/c/01/09 van de heer Klaus-Dieter SOHN

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1.

Tekst

verzoek 05/c/01/09 van de heer Klaus-Dieter SOHN, dat is opgesteld na bespreking door de Groep

voorlichting op 2 april 2009.

De Deense, de Finse, de Sloveense en de Zweedse delegatie verklaarden tegen het ontwerp-

antwoord te zullen stemmen. De volgende verklaringen werden afgelegd:

FI:

"FI kan niet instemmen met de uitlegging die wordt gegeven aan bijzonder gevoelig karakter

of bijzonder ruim gebied."

SI:

"De Sloveense delegatie is van oordeel dat het vrijgeven van dit document de bescherming

van juridisch advies niet ondermijnt."

SE: "Het voorstel is strijdig met het Turco-arrest. Er is geen redelijkerwijs te voorzien risico, en

dat dus niet alleen maar hypothetisch is, dat de vrijgave van het gevraagde document de

bescherming van juridisch advies in de zin van artikel 4, lid 2, tweede streepje, kan

ondermijnen. Het document moet dan ook in zijn geheel worden vrijgegeven."

Een meerderheid van de delegaties heeft ingestemd met de openbaarmaking van het stemresultaat.

Het Comité van permanente vertegenwoordigers wordt derhalve verzocht de Raad in overweging te

geven in de volgende zitting:

  • - 
    het ontwerp-antwoord in bijlage dezes als A-punt op de agenda goed te keuren, met dien verstande dat de Deense, de Finse, de Sloveense en de Zweedse delegatie tegenstemmen;
  • - 
    te besluiten het stemresultaat openbaar te maken.

De bijlage bestaat alleen in het Engels.

_____________________

BIJLAGE

DRAFT

REPLY ADOPTED BY THE COUNCIL ON ..................

TO CONFIRMATORY APPLICATION 05/c/01/09

made by Mr Klaus-Dieter Sohn by e-mail on 9 March 2009,

pursuant to Article 7(2) of Regulation (EC) No 1049/2001,

for public access to document 10673/02

The Council has considered this confirmatory application under Regulation (EC) No 1049/2001

(OJ L 145 of 31.5.2001, p. 43) and Annex II to the Council's Rules of Procedure (Council Decision

2006/683/EC, Euratom - OJ L 285 of 16.10.2006, p. 47) and has come to the following conclusion:

  • 1. 
    The applicant refers to document 10673/02, an opinion of the Legal Service of the Council concerning the proposal for a Regulation of the European Parliament and of the Council on

genetically modified food and feed.

  • 2. 
    In its reply dated 23 February 2009, the General Secretariat granted public access to paragraphs 1-12 of the document. Access to the remaining parts was refused pursuant to

Article 4(2), second indent, of Regulation (EC) No 1049/2001 (protection of legal advice).

  • 3. 
    In his confirmatory application, the applicant contests the arguments of the General Secretariat as to why the public interest in non-disclosure of the Legal Service opinion under

scrutiny should prevail.

Firstly, the applicant disputes the claim that disclosure of internal documents providing

members of the Council with information on the legality of a proposed legal act could

undermine the development of the Community's legal system. According to the applicant, a

public trust in the legality of the actions of the European legislature cannot be built up if

requests for Legal Service opinions can be met with a blanket refusal. In the applicant's view,

the General Secretariat has failed to take account of this particular aspect of trust in its

reasoning.

Secondly, the applicant disagrees with the argument that disclosure of the legal advice in

question may possibly lead the Council to display caution when requesting written opinions

from its Legal Service.

Thirdly, the applicant contests that the work of the Legal Service would be at risk if its

opinions were publicly accessible. He argues that the General Secretariat failed to

demonstrate either that this has been the case in the past, or why it should be so in the case in

question, and explains that he therefore remains unconvinced that there would be such a risk

in the present case.

Fourthly, the applicant contests the argument that disclosure of the legal advice would affect

the ability of the Legal Service to effectively defend the decision taken by the Council before

the Community courts. He claims that the argument is "of a general nature and not backed up

by reference to individual cases".

Finally, the applicant refers to the ruling of the ECJ in the Turco case and claims that the

reasons given by the General Secretariat to refuse full access to the legal advice in question

are the same in this particular case than in the Turco case.

  • 4. 
    The Council has examined the above-mentioned documents in the light of the applicant's arguments while taking the following elements into consideration:
  • 5. 
    Regulation (EC) No 1049/2001 seeks to give the public the widest possible right of access to documents of the institutions, subject to the principles, conditions and limits defined in that

Regulation. The second indent of Article 4(2) of the Regulation provides that the institution

shall refuse access to a document where disclosure would undermine the protection of "court

proceedings and legal advice", unless there is an overriding public interest in disclosure. It is

apparent from the wording of that provision that, as a general rule, once the institution is

satisfied that the release of a document would undermine the public interest in the protection

of legal advice, the document benefits from the protection against disclosure; as an exception

from the general rule, a document containing legal advice may be made public if an

overriding public interest justifying disclosure is established.

  • 6. 
    Hence, the Council cannot concur with the applicant's argument that, in order to rely on an exception under Article 4 of the Regulation, the institution needs to establish an overriding

public interest in the confidentiality of the document concerned. Such a reading would

actually reverse the rule and thus - taking the exception for the rule - contradict the very

wording of Article 4(2) of the Regulation. It should also be added that the second paragraph

of Article 1 of the EU Treaty, invoked by the applicant in support of his argument, lacks

direct effect.

  • 7. 
    As the applicant points out, the Court of Justice clarified the scope of the exception relating to the protection of legal advice in its judgment of 1 July 2008 (Joined Cases C-39/05 and

C-52/05 P). In that judgment, the Court held that the principle of increased openness, which

enables citizens to participate more closely in the decision-making process and guarantees

that the administration enjoys greater legitimacy, is of particular relevance when the

institution is acting in its legislative capacity. Consequently, documents containing legal

advice relating to legislative procedures are, in principle, to be disclosed, unless they are

"particularly sensitive [in] nature" or "particularly wide [in] scope that goes beyond the

context of the legislative process in question".

  • 8. 
    In accordance with Article 4(2) second subparagraph and the criteria laid down by the Court, after having established that the requested document contained legal advice, the General

Secretariat balanced the public interest in the protection of legal advice contained in the

document against the public interest in increased openness of the legislative process and the

accountability of the institution to the citizens . It is precisely as a result of this balancing exercise that it decided to release paragraphs 1-12, while refusing public access to the

remainder of the document for reason of its particularly sensitive nature.

  • 9. 
    In fact, paragraphs 13-20 of the document contain an analysis of powers of the Community legislator to establish a centralised Community procedure for the authorisation of products.

This analysis remains particularly relevant despite the fact that the legislative process on the

proposal has already been concluded: this delicate question has implications beyond the

specific legislative context and has been discussed within the framework of a number of

1

legislative proposals relating to the internal market . It has, most recently, been the subject of intensive discussions in a currently ongoing legislative procedure between the Council, the

European Parliament and the Commission relating to a Proposal for a Regulation of the

European Parliament and the Council concerning the placing of plant protection products on

2

the market . Furthermore, the issue analysed by the Legal Service in the requested document has given rise to an action for annulment against a Regulation (EC) No 2065/2003 of the

European Parliament and of the Council of 10 November 2003 on smoke flavourings used or

3

intended for use in or on foods , and where the Council lodged a statement of defence.

  • 10. 
    In the view of the above, the legal advice contained in paragraphs 13-20 of the requested

document is considered to be of a particularly wide scope, going beyond the specific legal

context and, in addition, particularly sensitive in nature. Since the legal advice contained in

the requested document has implications beyond the specific legislative context and, in

particular, on currently ongoing discussions in the Council where the precise question

examined by the Legal Service is raised, disclosure of the above parts of the requested

document would undermine the protection of legal advice. The possibility of this internal

legal advice given to the Council on such a delicate question to be made available to the

public might lead the Council to lose all interest in requesting written opinions from its Legal

Service, since it could find itself in a situation where it would be confronted - in a possible

action on the validity of the legal act adopted - with an internal advice given by its Legal

Service during the decision-making process. The Council would hence be deprived of an

important instrument for ensuring the legality of its acts.

1 See eg. Proposal for a Regulation of the European Parliament and of the Council laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (COM(2001) 404 final) and Proposal for a Regulation of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods (COM(2002) 400 final). 2 COM(2006) 388 final. 3

Judgment of 06/12/2005, United Kingdom / Parliament and Council (Rec.2005,p.I-10553).

  • 11. 
    In addition, and given the fact that the Council's Legal Service not only assists the institution

in ensuring the legality of the acts it adopts but also represents it before the Community

courts, 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. Moreover, the very fact for the

Legal Service to consider, in the future, the possibility that its internal legal advice intended

exclusively for the members of the Council in such a delicate area might be released to the

public, could affect the way in which legal opinions are drafted and hence prejudice the

possibility of the Legal Service to express its views in a free and independent manner. This

would in turn affect the Council's capacity to request and obtain frank, objective and

comprehensive internal legal advice.

  • 12. 
    As to the applicant's claim that the arguments relied upon by the General Secretariat are not

supported by the allegation of any fact, relevant to this case, the Council would point out that

Article 4(2) of the Regulation requires the institution to demonstrate a reasonably foreseeable

risk to the protected interest. The Council considers that the specific reasons set out above are

clearly capable of substantiating the risk to the protection of legal advice.

  • 13. 
    Finally, as to the existence of an overriding public interest, the Council considers that given

the particular circumstances of the case, notably the sensible nature of the legal advice

contained in paragraphs 13-20 of the document and its particularly wide scope which goes

beyond the specific legislative context, the general principles of openness and the

participation of the citizens in the institution's decision-making process would not prevail over

the public interest relating to the protection of legal advice. The Council understands the

applicant's interest in inspecting the document for the purposes of his academic research.

However, this does not, in the Council's view, point to the existence of an overriding public

interest in disclosure: indeed, it is not possible to grant the applicant privileged access to the

document, since the Council is obliged, when releasing the document, to do so erga omnes, in

conformity with Article 10(2) of Annex II of its Rules of Procedure.

  • 14. 
    In the light of the above and in the absence of any other elements pointing to an overriding

public interest in disclosure, the Council concludes that the institution's interest in receiving

frank, objective and comprehensive internal legal advice outweighs the applicant's interest in

full disclosure of the document and therefore confirms the General Secretariat's decision, set

out in its reply to the applicant of 23 February 2009, to grant public access to paragraphs 1-12

of the document while refusing access to the remaining parts refused pursuant to Article 4(2),

second indent, of Regulation (EC) No 1049/2001 (protection of legal advice).

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2.

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