Complaint 1170/2009/KM made by Mr Klaus-Dieter SOHN to the European Ombudsman - Hoofdinhoud

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Subject : Complaint 1170/2009/KM made by Mr Klaus-Dieter SOHN to the European Ombudsman

Delegations will find at Annex copy of a letter sent from the European Ombudsman to the Council

concerning complaint 1170/2009/KM.

________________________

ANNEX

[Translation of the complaint from German into English]

Complaint against an administrative act of the European Union

Dear Mr Diamandouros,

As a citizen of the European Union, I am turning to you, the European Ombudsman, with a

complaint against an administrative measure taken by the General Secretariat of the Council of the

European Union.

The dossier concerns an application for public access to Council document 10673/02, which I

submitted by letter of 21 January 2009 to the General Secretariat of the Council. As that application

was partially refused by letter of 23 February 2009, I submitted a confirmatory application on

9 March 2009, i.e. within the period expiring on 16 March 2009 pursuant to Article 7(2) of

Regulation (EC) No 1049/2001. In a letter of 31 March 2009 from the General Secretariat,

I received confirmation of receipt of my confirmatory application and was informed that the

deadline for replying had been extended pursuant to Article 8(2) of Regulation (EC) No 1049/2001.

I have not hitherto received any further letters or a reply, and I enclose herewith the

abovementioned documents.

I can now only conclude that the General Secretariat has decided also to reject my confirmatory

application, since the deadline pursuant to Article 8(1) of the Regulation expired on 20 April

and failure to reply is considered as a negative reply under Article 8(3) of the Regulation.

My complaint concerns various formal and substantive aspects.

Substantive aspects:

I take the view that the grounds given in the refusal of 23 February 2009 do not meet the

requirements of Article 4 of Regulation (EC) No 1049/2001. A public interest which could restrict

the right of access to documents under Article 2 of the Regulation has not been established

convincingly. You will find detailed explanations about the grounds given and my legal analysis of

the matter, and particularly the reasons for my confirmatory application, in the documents attached.

I would particularly point out that in the context of this dossier, the General Secretariat has used

arguments for which it had already failed to gain acceptance in precisely the same circumstances in

connection with joined cases C-39/05 and C-52/05 before the ECJ. A supreme legislative body such

as the Council of the European Union at European level should be expected to respect the decisions

of the highest court and allow its future action to be guided accordingly by them. However, the

General Secretariat's arguments reveal ill-concealed contempt for the ECJ.

Formal aspects:

The formal aspects of my complaint relate in practice to the General Secretariat's letter of

31 March 2009 confirming receipt of my confirmatory application and informing me of the

extension of the deadline for replying.

To begin with, it should be noted that the European Union has subscribed to the principles of the

rule of law and transparency. In terms of administrative practice, this must also signify that the

European Union's administration is obliged to take its decisions in a clear and intelligible manner,

to provide justification for its decisions to its citizens as a matter of principle and to provide them

with information concerning any possible means of redress available to them. The letter of 31

March 2009 is unclear in this respect, in that it merely gives notification of an extension of

deadline, the duration of which is, however, left open. To direct citizens to obtain information about

the significance of a decision in the relevant legal provisions cannot be reconciled with either the

rule of law or the requirement for transparency.

No reasons whatsoever were given here for extending the deadline, although the general obligation

to give reasons is even spelt out specifically in Article 8(2) of the Regulation. The General

Secretariat is thus eluding the possibility of its decisions and evaluations being subject to review.

Nor was any information concerning means of redress attached. Although such an obligation in this

situation is not laid down in Article 8(3) of the Regulation, such a duty to provide information is

apparent from the general administrative principles of Community law, and particularly from the

principle of the rule of law. To make matters worse, no explanation whatsoever was given for

refusal of the confirmatory application. Citizens are thus left entirely in the dark here as regards

both the outcome of the procedure and their means of redress.

I would ask you, following a thorough examination of my complaint, to provide me with redress

regarding access to Council document 10673/02 and, with regard to the formal complaints, to work

towards administrative procedures that are unimpeachable as regards the rule of law in future. No

court proceedings in this matter are or have been initiated.

(Complimentary close).

Klaus-Dieter Sohn

Im Grün 30

79268 Bötzingen

Germany

First name: Klaus-Dieter .................................................................................................................

Surname: Sohn ............................................................................................................................

On behalf of (if applicable): .............................................................................................................

Address line 1: Im Grün 30 ...............................................................................................................

Address line 2: .............................................................................................................................

Town/City: Bötzingen ....................................................................................................................

County/State/Province: Baden-Württemberg ..........................................................................................

Postcode: 79268 ...........................................................................................................................

Country: Germany ........................................................................................................................

Tel.: 07663/949 321 ......................................................................................................................

Fax: .........................................................................................................................................

E-mail: Sohn@cep.eu ....................................................................................................................

Against which European Union (EU) institution or body do you wish to complain?

European Parliament European Investment Bank

x Council of the European Union European Central Bank

European Commission European Personnel Selection Offi ce (EPSO)

Court of Justice of the European Communities (*) European Anti-Fraud Offi ce (OLAF)

European Court of Auditors European Police Offi ce (Europol)

European Economic and Social Committee Other Union body (please specify)

Committee of the Regions of the European Union

(*) Except in its judicial role.

What is the decision or matter about which you complain? When did you become aware of it?

See Annex

What do you consider that the EU institution or body has done wrong?

See Annex

What, in your view, should the institution or body do to put things right?

See Annex

Have you already contacted the EU institution or body concerned in order to obtain redress?

x Yes (please specify) No

If the complaint concerns work relationships with the EU institutions and bodies: have you used all the possibilities for internal

administrative requests and complaints provided for in the Staff Regulations? If so, have the time limits for replies by the

institutions already expired?

Yes (please specify) No

Has the object of your complaint already been settled by a court or is it pending before a court?

Yes (please specify) x No

Please select one of the following two options after having read the information in the box below:

x Please treat my complaint publicly

I require that my complaint be treated confidentially

Do you agree that your complaint may be passed on to another institution or body (European or national), if the European

Ombudsman decides that he is not entitled to deal with it?

x Yes No

Date and signature:

30.04.2009 (signature)........................................................................................................................

COUNCIL OF Brussels, THE EUROPEAN UNION

Mr Klaus-Dieter Sohn e-mail: Sohn@cep.eu 05/c/01/09 GENERAL SECRETARIAT

Directorate-General F

Press

Communication

Protocol

The Director General

RUE DE LA LOI, 175

B ­ 1048 BRUSSELS

Tel: (32 2) 281 67 10

(Fax: (32 2) 281 91 96 E-MAIL:

access@consilium.europa.eu

Dear Mr Sohn,

Thank you for your letter of 9 March 2009 in which you made a confirmatory

application for access to document 10673/02 pursuant to Article 7(2) of

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of

30 May 2001 regarding public access to European Parliament, Council and

Commission documents (Official Journal L 145, 31.5.2001, p. 43).

The Council's preparatory bodies which are charged with processing your

application have not yet completed that processing. The time limit available to the

General Secretariat for replying to your application has consequently been

extended pursuant to Article 8(2) of the Regulation.

(Complimentary close)

For the General Secretariat

Access to Council document 10673/02

Your letter of 23 February 2009

Ref: 09/0127-csm/jj

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

Confirmatory application

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."

Further discussion of this issue, in particular of the applicability of Article 95 of the

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:

• 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.

• 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.

• 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

• 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.

• 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.

• 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.

• 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.

COUNCIL OF Brussels, 11 February 2009 THE EUROPEAN UNION

Mr Klaus-Dieter Sohn e-mail: Sohn@cep.eu 09/0127-PRO-jj GENERAL SECRETARIAT

Directorate-General F

Press

Communication

Protocol

Transparency

• - 

  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:

access@consilium.europa.eu

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. On account of the heavy workload caused by the very large number of requests received, the time-limit for the General Secretariat to reply to your application has to be extended by 15 working days, in accordance with Article 7(3) of Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, 31.5.2001, p. 43). Yours sincerely, For the General Secretariat Ramón Jiménez Fraile

Letter complementing and supplementing my complaint of 30 April 2009

Dear Mr Diamandouros,

I refer to the complaint against an administrative act of the Council that I already submitted on

30 April 2009. In that complaint I objected to the refusal of an application for public access to

document 10673/02 as well as to failure to decide on my confirmatory application concerning this

matter. On 5 May 2009 I received a letter dated 24 April 2009 containing a reply to the

confirmatory application. My complaint of 30 April 2009 should now be supplemented as follows:

The substance of the reply rejecting the confirmatory application is not such as to invalidate the

objections I have already raised to withholding disclosure of document 10673/02. The reasoning

behind the refusal is self-contradictory and irreconcilable with considerations regarding the rule of

law.

It is initially claimed in section 5 of the letter that Regulation (EC) No 1049/2001 grants entitlement

to access to documents containing legal advice only by way of exception. Section 6, however,

rightly quotes the judgment of the ECJ of 1 July 2008 (Joined Cases C-39/05 and C-52/05), which

made clear that documents containing legal advice are, in principle, to be disclosed. This is in

contradiction with the previous presentation of the situation as being an exception to the rule.

According to the ECJ, access can only be refused if the document is "particularly sensitive [in]

nature" or "particularly wide [in] scope that goes beyond the context of the legislative process in

question". If it is to be inferred from this contradictory situation that the Council is continuing to

argue from the viewpoint of an exceptional state of affairs, it should once again be recalled that the

legal opinion of the ECJ takes precedence over that of the Council, and that the latter must

accordingly comply with it.

In sections 8-11 an attempt is made to establish that the conditions for a refusal referred to by the

ECJ are met. It is claimed, in particular, that the document is "particularly sensitive [in] nature" in

that the analysis contained in it has implications beyond the specific legislative context and is

relevant in one legal action as well as in a series of other legislative procedures. There would also

be the risk that if such a document were to be released to the public, the Council might no longer

have recourse to legal advice in order to avoid being bound by such a published document.

I cannot follow these arguments.

The document relates to a legislative procedure that has been concluded at this moment in time. The

fact that the Council is now relying, in legal proceedings that are under way in order to verify the

legality of another legal act, on a document which was drawn up in the course of a particular

legislative procedure, cannot, from the viewpoint of the rule of law and because of the requirement

for transparency, lead to the disclosure of that document being blocked. The Council must, indeed,

be allowed to retain its means for a legal defence. However, if this interest were indeed to be

accepted as sufficient grounds for confidentiality, then access to particularly relevant documents

containing legal advice would in practice be ruled out, as the Council could rely on them in more

and more procedures in the future. The principle of transparency would be undermined totally.

The same applies for the significance of the document in other legislative procedures. Should a

document be used by the Council once again, this must also be an issue for the Council's interests

and should not lead to blocking the completion of the earlier legislative procedure.

The further consideration in section 10 of the decision to the effect that the Council might forego

legal advice in the future is in my view not relevant. It does reveal, however, that the Council is

wary of comprehensive public scrutiny. A legislature which abides by the principles of openness

and the rule of law which it has itself established, need have no fear of scrutiny of its motives and

decisions, as it will always be able to justify the latter by means of its arguments.

That the Council views things differently here seems to me to be disturbing. If the Council insists

on shaping the decision-making process while excluding public scrutiny, it should call for fresh

legal advice in each case in the procedures under way. These documents would in each case initially

remain confidential, and could correspond to the substance of earlier documents. The need not to be

disrupted should not, however, lead to a situation where legislative procedures which have already

been concluded continue to be accessible to the public only to a limited extent, possibly also for an

unlimited period of time.

Furthermore, the content of the document might nevertheless have to be disclosed in subsequent

legal proceedings, so that the Council's behaviour in such instances could only lead to unnecessary

costs.

Notwithstanding these additional comments regarding the reply given in the meantime to my

confirmatory application, I would abide by the points of criticism put forward in my complaint of

30 April 2009.

(Complimentary close).

Klaus-Dieter Sohn

Im Grün 30

79268 Bötzingen

Germany

[Translation of the cover letter]

Dear Mr Sohn,

Please find enclosed the reply from the Council to your confirmatory application dated 10 March

2009.

Pursuant to Article 8(1) of Regulation (EC) No 1049/2001, we draw your attention to the possibility

to institute proceedings against the Council before the Court of First Instance of the European

Communities or to make a complaint to the Ombudsman. The conditions for doing so are laid down

in Articles 195 and 230 of the EC Treaty.

Yours sincerely,

Marc LEPOIVRE

Enclosures

REPLY ADOPTED BY THE COUNCIL ON 23 APRIL 2009

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.

• 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

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).

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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