# C_2022037EN.01003502.xml

| 24.1.2022 | EN | Official Journal of the European Union | C 37/35 |
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24.1.2022

EN

Official Journal of the European Union

C 37/35

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Action brought on 19 October 2021 — ClientEarth v Council

(Case T-682/21)

(2022/C 37/49)

Language of the case: English

Parties

Applicant: ClientEarth AISBL (Brussels, Belgium) (represented by: O. Brouwer, B. Verheijen and T. van Helfteren, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s decision of 9 August 2021, reference SGS 21/2870, received by the applicant on 9 August 2021, to refuse access to certain documents requested pursuant to 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 (1) and Regulation (EC) No 1367/2006 of 6 September 2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies; (2) |
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annul the defendant’s decision of 9 August 2021, reference SGS 21/2870, received by the applicant on 9 August 2021, to refuse access to certain documents requested pursuant to 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 (1) and Regulation (EC) No 1367/2006 of 6 September 2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies; (2)

| — | order the defendant to pay the applicant’s costs pursuant to Article 134 of the Rules of Procedure of the General Court, including the costs relating to any intervening parties. |
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order the defendant to pay the applicant’s costs pursuant to Article 134 of the Rules of Procedure of the General Court, including the costs relating to any intervening parties.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

| 1. | First plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exemption (first subparagraph of Article 4(3) of Regulation 1049/2001), because the disclosure would not seriously undermine the invoked decision-making process.






  — | The applicant argues that the Council failed to meet the high threshold set by the legal test, which is that disclosure must seriously undermine the decision-making process. Firstly, there was no decision-making process on substance remaining at the time of the contested decision. Moreover, the Council incorrectly relied on an argument that external interference from the public in the decision-making process of Regulation 1367/2006 would be problematic. |
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1.

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The applicant argues that the Council failed to meet the high threshold set by the legal test, which is that disclosure must seriously undermine the decision-making process. Firstly, there was no decision-making process on substance remaining at the time of the contested decision. Moreover, the Council incorrectly relied on an argument that external interference from the public in the decision-making process of Regulation 1367/2006 would be problematic.

| 2. | Second plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of legal advice exemption (second indent of Article 4(2) of Regulation 1049/2001), because disclosure would not seriously undermine the protection of legal advice.






  — | The Council failed to demonstrate that the requested document contains specific operational legal advice. Furthermore, the Council did not take into account relevant legal provisions and principles, as established in law and case-law, that the legislative process of the EU must be open and that a legal analysis of the legal service of an EU institution containing important general legal analyses relating to a legislative process for the adoption or revision of EU legislation should (when requested under Regulation 1049/2001) be disclosed. |
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2.

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The Council failed to demonstrate that the requested document contains specific operational legal advice. Furthermore, the Council did not take into account relevant legal provisions and principles, as established in law and case-law, that the legislative process of the EU must be open and that a legal analysis of the legal service of an EU institution containing important general legal analyses relating to a legislative process for the adoption or revision of EU legislation should (when requested under Regulation 1049/2001) be disclosed.

| 3. | Third plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the decision-making process exemption (first subparagraph of Article 4(3) of Regulation 1049/2001) and the protection of legal advice exemption (second indent of Article 4(2) of Regulation 1049/2001), because the contested decision failed to recognise and grant access on the basis of an overriding public interest.






  — | The Council failed to recognise and grant access on the basis of an overriding public interest. In particular, an overriding public interest exists as the revision of Regulation 1367/2006 is of very significant importance for the future level of access to justice in environmental matters and the contested decision affects the applicant in a particular and significant way in carrying out its mission as an NGO which is serving a public interest. |
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3.

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The Council failed to recognise and grant access on the basis of an overriding public interest. In particular, an overriding public interest exists as the revision of Regulation 1367/2006 is of very significant importance for the future level of access to justice in environmental matters and the contested decision affects the applicant in a particular and significant way in carrying out its mission as an NGO which is serving a public interest.

| 4. | Fourth plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the international relations exception (third indent of Article 4(1)(a) of Regulation 1049/2001).






  — | The Council failed to meet the high threshold set by the legal test to validly invoke the exception contained in Article 4(1)(a), third indent, of Regulation 1049/2001, namely that disclosure of a document should specifically and actually undermine the protection of international relations, and that the risk of the interest being undermined must be reasonably foreseeable and not be purely hypothetical. |
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4.

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The Council failed to meet the high threshold set by the legal test to validly invoke the exception contained in Article 4(1)(a), third indent, of Regulation 1049/2001, namely that disclosure of a document should specifically and actually undermine the protection of international relations, and that the risk of the interest being undermined must be reasonably foreseeable and not be purely hypothetical.

| 5. | Fifth plea in law, in subsidiary order, alleging errors of law and manifest error of assessment resulting in the misapplication of the obligation to provide partial access to documents (Article 4(6) Regulation 1049/2001).






  — | It is argued, finally, that the Council did not examine and grant partial access to the requisite legal standard. It has misapplied the legal test which requires the Council to assess whether every part of the requested document is covered by (any of) the exceptions invoked. |
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5.

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It is argued, finally, that the Council did not examine and grant partial access to the requisite legal standard. It has misapplied the legal test which requires the Council to assess whether every part of the requested document is covered by (any of) the exceptions invoked.

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(1)  OJ 2001 L 145, p. 43.

(2)  OJ 2006 L 264, p. 13. Editorial note: the requested document relates to the decision-making process concerning the proposed revision of Regulation 1367/2006.

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