Judgment — ECLI:EU:T:2018:69
Date: 2018-02-07
Language of the case: English
Court formation: First Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Spain

summary statement of that ground where, as was the case here, providing more comprehensive information would have entailed revealing the very content of the documents coming within the protection provided for by that provision, in disregard of the scope of the imperative protection provided for by the legislature in the wording of Article 4(1) of Regulation No 1049/2001. 58 On the other hand, the first plea must be upheld in part as regards the Commission’s refusal to grant access under Article 4(1) of Regulation No 1049/2001 in respect of the fourth, fifth and eighth documents at issue. 59 Since access to the documents at issue was also refused on the basis of Article 4(2) and (3) of Regulation No 1049/2001, it must still be determined whether those other grounds for refusal were applicable in the present case, justifying, in any event, the tenor of the contested decision. Second plea in law: infringement of Article 4(2) of Regulation No 1049/2001 60 By its second plea, the applicant submits that, in the contested decision, the Commission infringed Article 4(2) of Regulation No 1049/2001. That plea is broken down into three parts which will now be examined in turn. First part of the second plea, relating to the protection of court proceedings 61 In support of the first part of the second plea, the applicant claims that, by the contested decision, the Commission infringed Article 4(2) of Regulation No 1049/2001 in so far as, in the present case, it applied a general presumption of refusal to grant access to the documents at issue. First, the case-law does not recognise the possibility of applying such a presumption except in respect of pending court proceedings. On the date of adoption of the contested decision, however, no court proceedings were pending. Second, the case-law also makes clear that the general presumption of undermining the protection of court proceedings applies only to pleadings lodged in the course of such proceedings, which is not the case with the documents at issue. 62 Furthermore, the applicant considers that, in the present case, the Commission has not demonstrated how disclosure of the documents at issue would specifically and actually undermine the protection of court proceedings. In that regard, it emphasises that the documents at issue were not prepared for the purposes of court proceedings. Despite the fact that the actions which gave rise to the orders in the asylum cases were lodged after the second request for access was made, the applicant claims that the documents at issue were prepared in order to discuss the relevant Union acquis, which reaches far beyond the scope of those actions. 63 In any event, the applicant notes that the Commission was not a defendant in the asylum cases and that, consequently, it cannot invoke the principle of equality of arms or, more generally, rely on the protection of court proceedings in respect of all the documents connected with the subject matter of those court proceedings which were pending at the time. In addition, the applicant considers that the Commission contradicts itself where it relies on that protection in the present case by claiming that the documents at issue are connected with those cases, whilst maintaining that those documents primarily concerned the amendments to Decision 2015/1601 and Regulation No 539/2001. In reality, those documents contained only objective elements, disclosure of which could not undermine the Commission’s position in the abovementioned court proceedings. 64 The Commission contends that the first part of the second plea should be rejected, asserting, first of all, that, contrary to the argument put forward by the applicant, in the contested decision it did not invoke a general presumption of non-disclosure based on the exception relating to the protection of court proceedings or on any other exception provided for in Regulation No 1049/2001. The decision to refuse access was made following an individual examination of the content of the documents at issue and, with regard to the argument that the documents at issue do not constitute pleadings lodged in the course of court proceedings, the Commission relies on the judgments of 15 September 2016, Philip Morris v Commission (T‑796/14, EU:T:2016:483, paragraph 88), and of 15 September 2016, Philip Morris v Commission (T‑18/15, not published, EU:T:2016:487, paragraph 64), which the applicant considers contrary to the case-law of the Court of Justice, in which the General Court ruled that the exception relating to the protection of court proceedings also covered documents which were not drawn up solely for the purposes of court proceedings. 65 In the Commission’s view, on the date of adoption of the contested decision, which is the only date of relevance to the present case, disclosure of the documents at issue would inevitably have resulted in the disclosure of the content of its future statements in intervention in the asylum cases, which are expressly mentioned in the contested decision, as at the time the documents at issue had a relevant connection to those cases. Thus, for the purpose of the principle of equality of arms, and even though it was not a defendant in those cases and ultimately was not granted leave to intervene because of the settlement of those cases by way of orders and did not therefore have the opportunity to lodge statements in intervention, it was necessary and justified to refuse access to the documents at issue pursuant to the second indent of Article 4(2) of Regulation No 1049/2001. In that context, the Commission disputes the applicant’s assertion that its future statements in intervention would necessarily have related to the division of competences between the European Union and its Member States, while emphasising that, in those cases, it confined itself to answering the questions put by the General Court under Article 24 of the Statute of the Court of Justice of the European Union. 66 In that regard, it must be remembered that, first, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception provided for in Article 4 of Regulation No 1049/2001 upon which it is relying. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgments of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 31 and the case-law cited, and of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 52). 67 Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 of Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see judgments of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32 and the case-law cited, and of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53). 68 As regards the exception relating to the protection of ‘court proceedings’ referred to in the second indent of Article 4(2) of Regulation No 1049/2001, it means that the protection of the public interest precludes the disclosure not only of the content of documents drawn up solely for the purposes of specific court proceedings (see judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraphs 88 and 89 and the case-law cited, and of 3 October 2012, Jurašinović v Council, T‑63/10, EU:T:2012:516, paragraph 66 and the case-law cited), that is to say, pleadings or other documents lodged, but also internal documents concerning the investigation of the pending case, and correspondence between the DG concerned and the institution’s Legal Service or a law firm, the purpose of this definition of the scope of the exception in that case being to ensure both the protection of work done within the Commission and the confidentiality and safeguarding of professional privilege for lawyers (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 76, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 52). 69 In that context, the existence of a general presumption of non-disclosure has been acknowledged in respect of the pleadings in court proceedings as provided for in the second indent of Article 4(2) of Regulation No 1049/2001, so long as those proceedings remained pending (judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 94; of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 77; and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 53), although that presumption was applicable only in the case of specific pending proceedings and could not, as a rule, be relied on by the institution concerned where the proceedings in question had been closed by a decision of the Court (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 130). 70 The Court of Justice has also held that the exception relating to the protection of court proceedings meant that such protection was necessary to ensure observance of the principles of equality of arms and the sound administration of justice. Access to documents by one party could well upset the vital balance between the parties to a dispute — the state of balance which is at the basis of the principle of equality of arms — since only the institution concerned by an application for access to its documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 85 to 87). 71 It is inter alia for this reason that, in dealing with cases relating to access to preliminary views put together by an institution in connection with the drafting of a legislative proposal, the Court has considered that, notwithstanding what it held in its judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190, paragraphs 88 to 91 and the case-law cited), the case-law referred to in the preceding paragraph of this judgment did not rule out the possibility that documents other than pleadings and documents exchanged with the Legal Service of an institution specifically in connection with pending proceedings might come within the scope of the exception relating to the protection of court proceedings. In that regard, emphasising that the principle of equality of arms and the sound administration of justice were at the heart of the protection provided for in the second indent of Article 4(2) of Regulation No 1049/2001, the Court considered that the need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 88, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 64). 72 In those two cases, although those documents have not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the equality of arms between the parties could have been seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party and closely connected to the legal aspects of pending or potential but imminent proceedings (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 90, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 65). 73 However, in order for the exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link either with a dispute pending before the Courts of the European Union, in respect of which the institution concerned is invoking that exception, or with proceedings pending before a national court, on condition that they raise a question of interpretation or validity of an act of EU law so that, having regard to the context of the case, a reference for a preliminary ruling appears particularly likely (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraphs 88 and 89, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 64). 74 It is in the light of those considerations from the Court’s case-law that the first part of the second plea must be examined, it being noted that, contrary to the applicant’s assertions, the detailed case-law relating to the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001, as recapitulated previously and as results from the judgments of 15 September 2016, Philip Morris v Commission (T‑796/14, EU:T:2016:483), and of 15 September 2016, Philip Morris v Commission (T‑18/15, not published, EU:T:2016:487), is not derived from a broad interpretation of that exception that would have run counter to the Court of Justice’s case-law which, incidentally, has not to date had to address such a question directly. 75 In the present case, it is clear that the documents at issue were not drawn up specifically in connection with pending court proceedings. 76 However, on 19 September 2016, the date on which the contested decision was adopted and which is the only date of relevance to the present case (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 54), three sets of court proceedings, namely the asylum cases, were pending and related specifically to the legality of the EU-Turkey statement of 18 March 2016, which had succeeded the EU-Turkey statement of 8 March 2016. Moreover, in those cases the Commission, who was not a defendant, had already by that date lodged an application for leave to intervene under Article 143 of the Rules of Procedure. 77 Moreover, the Court observes that the documents at issue were drawn up by the Legal Service, which itself was responsible for representing the Commission in those court proceedings, and are closely linked to the legal aspects of the dispute at the heart of those court proceedings. Those documents concern the detailed rules for returning migrants residing without authorisation in accordance with the asylum procedures put in place by EU law, in particular the concept of ‘safe third country’ at the heart of asylum cases. Therefore, there was a foreseeable and not hypothetical risk that the disclosure of those documents would affect the Commission’s position as intervener inasmuch as they contain legal views, which are essentially preliminary, on the aspects at issue in asylum cases. 78 In those circumstances, it must be accepted that the Commission was entitled to rely in the contested decision on the exception relating to the protection of court proceedings as referred to in the second indent of Article 4(2) of Regulation No 1049/2001 in respect of all of the documents at issue. 79 In that regard, contrary to the applicant’s claims, the Commission did not apply a presumption of non-disclosure under the protection of court proceedings, but rather conducted an individual examination of each of the documents at issue. That is corroborated by the fact that it did grant partial access to the fifth document at issue. 80 Consequently, the first part of the second plea must be rejected. Second part of the second plea, relating to the protection of legal advice 81 In the second part of the second plea, the applicant submits that the legal advice and analysis to which the second request for access relates concern the adoption of the legal instruments which have been or will be adopted to implement the EU-Turkey statements of 8 and 18 March 2016 with the result that, from its point of view, they were related to a legislative process, in this instance the process for amending Decision 2015/1601 and Regulation No 539/2001, meaning that the Commission could not refuse to disclose them. 82 Notwithstanding this aspect and even assuming that ‘the context of the preliminary views contained in the Requested Documents did not concern the abovementioned legislative proceedings’, the applicant considers that in the contested decision the Commission did not in any case show how disclosure of the documents at issue would prevent it from receiving frank, objective and comprehensive advice within the meaning of the case-law. It merely asserted peremptorily that their disclosure ‘would deprive it of an essential element ... on the implementation of the EU-Turkey Statement’. In the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 57 to 64), the Court of Justice determined that legal advice relating to a legislative matter must in principle be disclosed. In any event, according to the applicant, in so far as the documents at issue were intended to inform the Commission regarding the Union’s competence to issue the EU-Turkey statements of 8 and 18 March 2016 and regarding the Union’s asylum acquis, the Commission could not reasonably have expected that the legal advice would remain confidential. It should instead have expected it to be made public at some point and, in this regard, the applicant cannot see how, in general, disclosure of documents such as those at issue would prevent the Commission from requesting legal advice. 83 In its reply, the applicant states that, even if the protection of legal advice could justify the contested decision, that decision should nevertheless be annulled for lack of reasoning due to the Commission’s inconsistent description and confused arguments regarding the nature and content of the documents at issue and the context in which they were drawn up. 84 The Commission contends that the second part of the second plea should be rejected as unfounded, stating, first of all, that, contrary to the claim made by the applicant, the documents at issue were not drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States within the meaning of paragraph 68 of the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374). Those documents are merely preliminary views relating to the matters that were under discussion in relation to the proposals for amending Decision 2015/1601 and Regulation No 539/2001. They cannot therefore be considered to be documents drawn up for the purpose of the legislative procedures relating to those two acts of EU law currently in force. Because they constitute only legal advice of an internal and preliminary nature, they could, in the Commission’s view, be misconstrued or misunderstood if they were disclosed outside the context in which they were drawn up. 85 In the contested decision, the Commission explained to the applicant that there was ongoing work in liaison with the competent national authorities regarding the sensitive matter of the refugee crisis. Disclosure of the documents at issue pertaining to the interpretation of the Union’s asylum acquis would have a serious impact on the Commission’s interest in seeking frank, objective and comprehensive advice in a context where the Commission has been in constant and intense contact since March 2016 with the authorities of the Member States involved, notably the Hellenic Republic, on the necessary measures to be taken in order to ensure the implementation of the EU-Turkey statements of 8 and 18 March 2016 and the control of the migration crisis. 86 In that regard, the applicant’s argument that the documents at issue contain a purportedly objective interpretation and that the questions addressed in those documents have been the subject of academic debate cannot prevent the Commission from protecting its ability to receive frank, objective and comprehensive advice in a sensitive area and during a very delicate moment for the implementation of the EU-Turkey statement of 18 March 2016, bearing in mind that the Commission has regularly made information regarding the implementation of that statement available to the public. 87 Lastly, the Commission contends that the ground for annulment concerning an alleged lack of reasoning was invoked only in the reply and, in the absence of valid reasons put forward by the applicant to justify its late introduction, should be rejected as inadmissible. In any event, the applicant has not substantiated this argument, which is, moreover, manifestly unfounded. 88 As a preliminary point, it should be remembered that the aim of the exception relating to legal advice provided for in the second indent of Article 4(2) of Regulation No 1049/2001 is to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice and that, in order for an institution to be able to rely on that exception, it is also necessary that the risk of undermining that interest be reasonably foreseeable and not purely hypothetical (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 42 and 43). 89 In that regard, with respect to the fact that disclosure of an opinion of the Legal Service relating to a legislative proposal could lead to doubts as to the legality of the legislative act concerned, it has been held that it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the legality of an isolated act, but also as regards the legitimacy of the decision-making process as a whole (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 59). 90 In the present case, however, it is clear that, contrary to the applicant’s assertions when it mentions the reference, in the contested decision and in connection with the exception referred to in Article 4(3) of Regulation No 1049/2001, to the proposals for amending Decision 2015/1601 and Regulation No 539/2001, the documents at issue are not legal advice relating to a specific legislative proposal. Notwithstanding the reference in the second document at issue to the potential need to amend Decision 2015/1601, they are — preliminary — positions of the Legal Service on a number of aspects of EU law on asylum matters and in connection with the political commitments negotiated and undertaken, under the name ‘EU-Turkey statements’, between the Heads of State or Government of the European Union and their Turkish counterpart. 91 That is not to say that the non-legislative activity of the institutions falls outside the scope of Regulation No 1049/2001. Suffice it to bear in mind in that regard that Article 2(3) of that regulation states that it ‘shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’ (see, to that effect, judgments of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraphs 87, 88 and 109, and of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 107 and the case-law cited). 92 In the present case, the documents at issue contain interdepartmental legal consultations within the Commission and do not constitute legal advice definitively fixing the institution’s position and, contrary to the applicant’s claims, nor are they legal advice issued as part of legislative procedures, such as those which were at issue in the case that gave rise to the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374). Those consultations, addressed exclusively to the cabinets of the President of the Commission and the member of the Commission responsible for Home Affairs, were sought at short notice, in order to assist representatives of the Commission’s representatives in their meetings with the representatives of the Hellenic Republic and the Republic of Turkey on the measures the latter were to adopt as part of the implementation of the commitments undertaken in the EU-Turkey statements of 8 and 18 March 2016. 93 In that regard, as correctly pointed out by the Commission, the disclosure of such legal advice, which was preparatory and internal and drawn up for the purpose of political dialogue between the institution and representatives of a Member State and a third State would have actually undermined, in a foreseeable manner, the Commission’s interest in seeking and receiving frank, objective and comprehensive advice from its various departments in order to prepare its final position as an institution, in an area of certain high political sensitivity and in a context of urgency in order to address a delicate migration situation. The interdepartmental consultations, which took the form of the documents at issue but which had been accompanied by telephone conversations, are preparatory work that is essential in the proper running of that institution. 94 The frankness, objectivity and comprehensiveness, as well as the expeditiousness of those legal consultations, given in a situation of urgency — as evidenced by inter alia the late hours at which the emails at issue were sometimes sent by the members of the Legal Service to the cabinet of the President of the Commission and the DG placed under the authority of the member of the Commission responsible for Home Affairs — would have been affected in the present case if the drafters of those consultations, drafted in haste in order to lay the groundwork for meetings between officials of that institution and those of a Member State and a third State, had had to anticipate that such emails would be made available to the public. 95 Lastly, as regards the applicant’s complaint set out in the reply alleging a lack of reasoning on the part of the Commission in the contested decision or an insufficient statement of reasons, suffice it to note that, contrary to the applicant’s claims, the description of the nature and content of the documents to which access was refused and the grounds for refusal set out by the Commission in the contested decision, including the review of the context in which they were drawn up, are not contradictory and fulfil the requirements of Article 296 TFEU. Consequently, this complaint must in any event be rejected, without its being necessary to examine the plea of inadmissibility on this point put forward by the Commission in the rejoinder. 96 In the light of the foregoing, the second part of the second plea must be rejected. Third part of the second plea, relating to the existence of an overriding public interest in disclosure of the documents at issue 97 Even if the existence of a general presumption that the protection of court proceedings and legal advice would be undermined or of a specific threat to that protection could be recognised in the present case, the applicant submits in the alternative, in the third part of the second plea, that there was an overriding public interest in disclosure of the documents at issue within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001. The institutions of the Union cannot be held accountable or demonstrate the legitimacy of the decisions they take on behalf of all EU citizens unless EU citizens can understand the legal context in which those decisions are made. Citizens should thus be granted access to the documents at issue, even if such disclosure could potentially undermine the protection of court proceedings and legal advice. 98 In any event, the applicant maintains that the contested decision disregards the last clause of Article 4(2) of Regulation No 1049/2001 in so far as the Commission failed to examine the existence of a public interest in disclosure and, more generally, to weigh the interests served by disclosure with those against disclosure. In that regard, the applicant disputes the Commission’s assertion that it merely put forward general considerations which could not provide an appropriate basis for establishing that the principle of transparency was especially pressing in the present case. Reliance on the particular nature of the migration crisis and of the measures taken to address it is sufficient in the present case to justify the existence of a particular public interest in disclosure within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001. 99 The Commission contends that the third part of the second plea should be rejected as unfounded, emphasising that in the contested decision it indicated to the applicant that the latter had merely invoked the principle of transparency without showing why that principle was especially pressing in the present case and capable of prevailing over the legitimate grounds for non-disclosure of the documents at issue. 100 In the present case, the Commission examined the existence of an overriding public interest but — according to the Commission — the fact remains that it was for the applicant to show that there was an overriding public interest. On this point, the applicant merely mentioned general considerations concerning society’s right to be aware and citizens’ right to understand the legal context in question, which, from the Commission’s point of view, were totally incapable of demonstrating that the principle of transparency was especially pressing in the present case and capable of prevailing over the grounds for non-disclosure of the documents at issue, especially since the Commission had ensured that citizens were informed by providing up-to-date information, such as the communication of 16 March 2016 entitled ‘Next operational steps in EU-Turkey cooperation in the field of migration’. Furthermore, the fact that there is academic debate cannot constitute proof of the existence of an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001. 101 In any event, the Commission maintains that the exception relating to the protection of international relations was applicable to some of the documents at issue. No provision has been made by the Union legislature for weighing that exception, which is governed by Article 4(2) of Regulation No 1049/2001, against an overriding public interest in disclosure. 102 It should be borne in mind as a preliminary point that, when an institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it must weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 of Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32 and the case-law cited). 103 It is however for the party requesting access to refer to specific circumstances to establish an overriding public interest which justifies disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94; of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90; and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 49). 104 That being so, the overriding public interest which may justify the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 92, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 92). 105 In that regard, the principle of transparency, underlying Regulation No 1049/2001 and relied on by the applicant, contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46). 106 In the present case, once again, it is clear that the documents at issue here were not drawn up for the purpose of a legislative procedure as referred to in the FEU Treaty. 107 The applicant, however, has put forward general considerations relating to the principle of transparency, which imply, in the public interest, that citizens are able to participate more closely in the decision-making process and that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45). 108 In that regard, first of all, since it has been held that the refusal to disclose the first to third and the sixth and seventh documents at issue came within the exceptions referred to in Article 4(1) of Regulation No 1049/2001, the third part of the second plea must be rejected as ineffective as regards those documents. Under that provision, the institutions are obliged to refuse access to documents falling under any one of those mandatory exceptions once the relevant circumstances are shown to exist and there is no need to balance the protection of the public interest against an overriding general interest (judgments of 25 April 2007, WWFEuropean Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraphs 44 and 45, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 44). 109 Next, contrary to the applicant’s assertions, the general considerations relating to the principle of transparency, on which it relies in the confirmatory application, were taken into account by the Commission in the contested decision, but the Commission took the view that they were incapable of demonstrating that the principle of transparency was especially pressing in the present case and capable of prevailing over the grounds justifying the refusal to disclose the documents at issue. 110 It should also be noted in that regard that, contrary to the argument put forward by the applicant, in the documents at issue the drafters thereof did not examine the division of competences between the European Union and its Member States for the purposes of the adoption of the EU-Turkey statements of 8 and 18 March 2016. 111 This finding is not called into question by the fact that, subject to what may be revealed from the documents at issue without undermining the protection of the public interest as regards international relations, in the documents at issue, one sentence, contained in the sixth of those documents, notes that certain aspects referred to in the explanatory memorandum between the Hellenic Republic and the Republic of Turkey may come within the competences of the European Union and, therefore, entail participation by the European Union in that memorandum. Similarly, in the seventh of those documents, a brief reference is made to the fact that participation of the European Union, according to the detailed rules laid down in Article 218 TFEU, could be necessary if obligations relating to the readmission agreement between those two States were to be created. In fact, such considerations concern the implementation of the EU-Turkey statements but are unrelated to the question of the European Union’s competence to issue those statements, as raised by the applicant. It should be borne in mind that in asylum cases the Court has held that the EU-Turkey statement of 18 March 2016 cannot be regarded as an act adopted by the European Council, or by another institution, body or agency of the European Union. 112 In those circumstances, in the light of the arguments put forward by the applicant, it must be held that the applicant has failed to establish how the principle of transparency was especially pressing in the present case to the point of justifying, at least in respect of the documents not covered by the exceptions referred to in Article 4(1) of Regulation No 1049/2001, the disclosure of the documents at issue, the non-disclosure of which came within the protection of court proceedings and legal advice. That is all the more so in a context where the Commission has regularly disseminated general information publicly (see, to that effect, judgment of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 60). For the sake of completeness, the Court notes that this also holds true for the documents covered by the exceptions referred to in Article 4(1) of Regulation No 1049/2001. 113 The third part must be rejected, as must therefore the second plea as a whole. Fourth plea in law: infringement of Article 4(6) of Regulation No 1049/2001 114 Under the fourth plea, put forward in the alternative and which should be considered before the third plea, the applicant disputes the Commission’s statement that partial access to the documents at issue was not possible. In view of the nature of those documents, it is inconceivable that the entirety of the text contained therein would be covered by the exceptions invoked by the Commission. Consequently, in refusing to grant the applicant partial access in the contested decision, the Commission infringed Article 4(6) of Regulation No 1049/2001. 115 The Commission contends that the plea should be rejected, emphasising that it had explained in the contested decision that it had considered the possibility of granting partial access to the documents at issue but discarded it on the ground that the documents were covered in their entirety by the exceptions justifying non-disclosure under Regulation No 1049/2001. 116 In that regard, according to Article 4(6) of Regulation No 1049/2001, ‘[i]f only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released’. 117 According to settled case-law, examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality (judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 83; see also, to that effect, judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28). 118 It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution in refusing access to a document could be achieved if the institution merely struck out the passages which might harm the public interest to be protected (judgments of 25 April 2007, WWF European Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraph 50, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 84; see also, to that effect, judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraph 29). 119 In the present case, it is clear that, in the contested decision and as it indicated in that decision, the Commission did examine the possibility of granting the applicant partial access to the documents at issue. That is, moreover, corroborated by the fact that it granted the applicant partial access to the fifth document at issue. 120 Next, the Court considers that, similarly to what it did in respect of the fifth document at issue, it was possible for the Commission to grant partial access to the first sentence of the part entitled ‘Legal framework’ of the first document at issue and to the first sentence of point I(a) entitled ‘EU Legal Framework’, of Attachment 1 to the second document at issue. Those passages are purely descriptive of the provisions in question, but they do not contain a legal or strategic position coming within the exceptions referred to in Article 4(1) and (2) of Regulation No 1049/2001. 121 However, there is nothing in the documents at issue produced by the Commission before the Court to show that it would have been possible to grant partial access to the other documents without that step revealing the content of those parts of the documents in respect of which the refusal to grant access was justified, in particular as regards the strategic objectives underlying the discussions on the implementation, under the direction of the European Union, of the EU-Turkey statements by the Hellenic Republic and the Republic of Turkey. 122 In that regard, the European Union Courts have held that, in such a case, the defendant institution, in the present case the Commission, is not required to identify, in the statement of reasons for the contested act, the sensitive content of the documents at issue that cannot be revealed by the disclosure, where such a step would entail revealing information the protection of which is covered by the exception relied on, relating to the protection of the public interest as regards international relations (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 82, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 106). 123 The same holds true for the fourth and eighth documents at issue and the undisclosed part of the fifth document at issue, the content of which could not be partially revealed without undermining the protection for court proceedings and legal advice. 124 Consequently, subject to what has been held above in paragraph 120, the fourth plea must be upheld in part and rejected as to the remainder. Third plea in law: infringement of Article 4(3) of Regulation No 1049/2001 125 Given that, first, the rejection of the first and second pleas and the partial rejection of the fourth plea mean that the Commission was entitled — except for the parts of the documents referred to in paragraph 120 of the present judgment — to rely on the exceptions provided for in Article 4(1) and (2) of Regulation No 1049/2001 and, second, the considerations relating to the fourth plea hold true even if the exception referred to in Article 4(3) of that regulation were to be applicable, it is no longer necessary to examine the merits of the third plea, concerning the latter exception. 126 Therefore, without its being necessary to rule on the third plea, it is appropriate to: – annul the contested decision in so far as the Commission refused to grant partial access to the first sentence of the part entitled ‘Legal framework’ of the first document at issue and to the first sentence of point I(a) entitled ‘EU Legal Framework’ of Attachment 1 to the second document at issue; – dismiss the application as to the remainder. Costs 127 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, pursuant to Article 134(3) of those rules, the parties are to bear their own costs where each party succeeds on some and fails on other heads. 128 Since the applicant has failed only in part, it is appropriate to order each party to bear their own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls European Commission Decision C(2016) 6029 final of 19 September 2016, in so far as it refuses to grant partial access to Access Info Europe to the first sentence of the part entitled ‘Legal framework’ of the Commission document with the reference Ares(2016) 2453347, and to the first sentence of point I(a) entitled ‘EU Legal Framework’, of Attachment 1 to the Commission document with the reference Ares(2016) 2453181; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs. Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 7 February 2018. E. Coulon I. Pelikánova Registrar President * Language of the case: English.