Opinion of the Advocate General — ECLI:EU:C:2007:721
Date: 2007-11-29
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - successful;Appeal - successful
Origin: Italy;Sweden

summary of that provision is sufficient to demonstrate that. Advocate General Jacobs had already suggested that an opinion given by the Council’s legal service may not, without the express authorisation of the Council, be invoked by a party before the Court because its disclosure ‘would obviously be prejudicial to the public interest in the provision of independent legal advice’. (31) As I have already mentioned, (32) the Community judicature itself, less than three years later, had adopted an exception on the ground of confidentiality in respect of opinions of the legal services of the institutions concerning draft legislation on the ground that ‘were documents of that nature to be disclosed, the discussions and exchange of views within the institutions on the legality and scope of the legal measure to be adopted would be made public and hence, …, the Council might lose all interest in requesting the Legal Services for written opinions’; on the ground in other words ‘that disclosure of those documents could give rise to uncertainty with regard to the legality of Community measures and have a negative effect on the functioning of the Community institutions’. (33) Thereafter, the Community judicature had also justified that exception by ‘public policy, which requires that the institutions can receive the advice of their legal service, given in full independence’. (34) As I have already pointed out, that is the judicial approach which the legislature endorsed in Regulation No 1049/2001. 39. A principle of non-disclosure of legal advice was thus laid down, which covers inter alia all the legal assessments given by the legal services of the institutions in respect of draft legislation. Even though some Member States, such as the Kingdom of Sweden, have provided for the opposite approach in their national legislation, that principle of non-disclosure is the result of a political choice on the part of the Community legislature which has let itself be convinced by the reasons pointed out above. 40. The interest protected by the exception on the ground of confidentiality which is provided for in respect of legal advice justifies as a general rule the secrecy of all the legal opinions of the legal services of the institutions in respect of draft legislation. Access to any of those opinions is capable of specifically and actually undermining the ability of an institution to get an opinion from its legal service which is frank, objective, comprehensive and, therefore, of use to the institution for the purpose of assessing the legality of a piece of legislation. The disclosure of such an opinion would mean that the legal service would display reserve and caution in drafting it, so as not to affect the institution’s scope for decisions. Its usefulness to the institution would be appreciably weakened. What is more, it is to be feared that the possibility of its legal opinions being disclosed may cause a legal service henceforth to express the main points only orally, which would reduce transparency even more than does the application of the principle of non-disclosure of legal advice. It should be remembered that the best can sometimes be the enemy of the good. Furthermore, where the institution chose not to follow a negative opinion from its legal service, the disclosure of that opinion could, in the event of a subsequent challenge before the courts, harm the institution’s capacity to defend its action, particularly as it would be represented by its legal service. 41. Contrary to what both appellants maintain, there is thus no need to draw a distinction between the legal assessments in a legal opinion which deserve the protection provided for in the second indent of Article 4(2) of Regulation No 1049/2001 and those which do not. It would in particular be contrary to the interest protected to seek to distinguish between ‘positive’ or ‘inoffensive’ opinions, which should be disclosed, and ‘negative’ or ‘sensitive’ opinions, which should remain confidential. As the Council correctly contended, a refusal to disclose would indicate that it was a negative opinion and would bring with it all the harmful effects already mentioned and which the exception on the ground of confidentiality specifically seeks to avoid. Nor is it possible to follow the Swedish Government, according to which it is necessary to take account of the stage reached in the deliberations on a legislative act. In that regard also, the Council correctly contended that the legality of a legislative act can be challenged at any time by means of a reference for a preliminary ruling or a plea of illegality. On that point I can only completely agree with the finding of the Court of First Instance according to which ‘given the special nature of opinions of the Legal Services, it would not appear that those documents are bound, over the years, to lose their confidential character’. It added that ‘their disclosure could still be detrimental to the public interest in the stability of the Community legal order and the proper functioning of the Community institutions, inasmuch as time is not likely to alter the reasons … justifying such an exception to the right of access’. (35) Considerations relating to the passage of time cannot thus make it possible to challenge effectively the fact that Regulation No 1049/2001 laid down a principle of non-disclosure in respect of all legal advice. That does not mean, however, that those considerations have no bearing but, as will be seen, the time which has passed can be taken into account only at the stage of assessing an overriding public interest which would justify the disclosure of a legal opinion by way of derogation from the confidentiality which it enjoys as a general rule. 42. It is apparent that it is in the very nature of the public interest which underlies the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 to protect the confidentiality of all legal opinions given in respect of draft legislation. The Court of First Instance was thus justified in holding that the disputed refusal of access was lawful ‘given the particular nature of such documents’ and because ‘the independence of the opinions of [a] legal service … can constitute an interest to be protected’. (36) 43. Thus, although there is no doubt, as the Court of First Instance ruled on another occasion, that ‘the obligation for an institution to undertake a concrete, individual assessment of the content of the documents covered in the application for access is an approach to be adopted as a matter of principle …, which applies to all the exceptions in paragraphs 1 to 3 of Article 4 of Regulation No 1049/2001, whatever may be the field to which the documents sought relate’, (37) the extent to which that requirement applies in connection with the implementation of the exception on the ground of confidentiality in respect of legal advice and in connection with the application of the other exceptions differs. In the latter cases, whether the disclosure of a document may actually be detrimental to the interest protected depends not only on the subject-matter of the document, but also on the nature of the information it contains. For example, it is not because a document relates to an inspection or investigation that its disclosure would automatically endanger the completion of that action and thus undermine the protection of the purpose of inspections or investigations. (38) Likewise, the fact that a document contains information or negative evaluations about the political situation or the protection of human rights in a third country does not necessarily mean that its disclosure would affect the Union’s international relations. (39) 44. I readily admit that the analysis which I am suggesting imposes significant limits on the case-by-case examination of the exception on the ground of confidentiality in respect of legal advice. That is, however, once again, merely the consequence of the difficulty of giving a practical effect and a reasonable meaning in practice to a perfectly contradictory legislative formulation. 45. It follows from the above that the Court of First Instance did not fail to have regard to the requirement for an individual and specific examination of the documents requested for the purposes of applying the exception on the ground of confidentiality in respect of legal advice. 2. The exception to the exception, based on the existence of an overriding public interest 46. The confidentiality of legal advice cannot however be absolute. The principle of non-disclosure of that advice which is laid down by the second indent of Article 4(2) of Regulation No 1049/2001 must, according to the wording of that provision, give way if an ‘overriding public interest’ none the less justifies the disclosure of the document requested. Moreover, it is also for the purpose of weighing the interest protected by the exception to the right of access provided for in favour of legal advice against possible overriding public interests that a specific examination of the document requested is necessary. (40) 47. In that regard, Mr Turco complains that the Court of First Instance erred in finding that the overriding public interest capable of justifying the disclosure of a document must, as a rule, be distinct from the principles underlying Regulation No 1049/2001, that is to say, the principles of transparency, openness and democracy or of the participation of citizens in the decision-making process, unless the applicant shows that, having regard to the specific facts of the case, the invocation of those principles is so pressing that it overrides the need to protect the document in question. He also complains that the Court of First Instance made it impossible for itself to ascertain whether the Council had properly weighed the overriding public interest against the need for protection of legal advice by not ordering that the legal opinion in question be produced. a) The identification of the overriding public interest 48. The first complaint referred to above raises the sensitive question of the nature of the ‘overriding public interest’ within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 which would justify the disclosure of a legal opinion by way of derogation from the confidentiality which that kind of document is as a rule guaranteed. Is this a question of the public interest in access to documents which, in the specific circumstances of the present case, would prevail over the public interest which demands that legal advice be protected, or of a public interest which is different from and superior to the public interest in access to documents? 49. By favouring the latter option, the Court of First Instance made the applicant responsible for the task of identifying a public interest which is different from and superior to the public interest in transparency, openness, democracy and the participation of citizens in the decision-making process. That is a task so formidable that there is hardly any likelihood that access to a document would ever be granted on the ground that there is an overriding public interest. (41) An applicant comes up against the insuperable difficulty of identifying public interests which would be of more importance than the ‘usual’ public interest connected with transparency. 50. However, that interpretation of the wording of Regulation No 1049/2001 is not necessary. The argument put forward by the Court of First Instance that, in so far as the principles of transparency, openness, democracy and the participation of citizens in the decision-making process underlie all the provisions in that regulation, the overriding public interest capable of justifying the disclosure of a document by way of derogation from the general confidentiality of legal advice must, as a rule, be distinct from those principles does not convince me. In actual fact, what is imposed, in my opinion, by the last phrase in Article 4(2) of Regulation No 1049/2001 is the obligation, for the institution concerned, to weigh the public interest protected by the exception on the ground of confidentiality against the public interest in access to documents, in the light of the content of the document requested and the specific circumstances of the case. In other words, the ratio legis of that provision, so far as concerns the exception on the ground of confidentiality in respect of legal advice, is that, although the public interest which underlies the protection of legal advice prevails as a rule over the public interest in access to documents, an analysis of the circumstances of the case and of the content of the legal opinion requested may tip the scales in the opposite direction. 51. That is also the interpretation which Advocate General Geelhoed defended in taking the view that it ‘is clear from the explicit wording’ of Article 4(2) and (3) of Regulation No 1049/2001 that those provisions ‘require institutions, in considering whether access to documents should be refused, to balance the particular interest to be protected by refusing disclosure (e.g. protection of commercial interests, court proceedings or the institutions’ decision-making process) against the general, public interest in the document concerned being made accessible’. (42) It is also more in that direction that the case-law of the Court of First Instance subsequent to the judgment under appeal seems to be moving. Referring to the exceptions laid down in Article 4(3), the Court of First Instance points out that they give the institutions a discretion ‘which allows them to balance, on the one hand, their interest in maintaining the confidentiality of their deliberations against, on the other hand, the interest of the citizen in gaining access to documents’. (43) 52. It seems to me that that is the only reading capable of giving any effect to the exception to the exceptions on the ground of confidentiality, based on the existence of an overriding public interest. The illustrations of overriding public interests provided by the Council at the hearing demonstrate that. Even though the Council shares the Court of First Instance’s analysis that those interests must be distinct from the principles underlying Regulation No 1049/2001, the illustrations make clear the difficulty, if not the impossibility of the distinction. For example, the possibility, which was referred to, of disclosing non-controversial legal advice: it is explained by the fact that the objective of the protection of legal advice, which consists in the preservation of an institution’s ability to obtain frank and independent advice and the desire not to provide challenges in respect of the legality of a legislative act, does not require the confidentiality of that advice, with the result that the public interest in access to documents regains precedence. Similarly, the case of legal opinions issued for publication, which is justified by the fact that disclosure has the specific aim of cutting short any discussion on the legality of the institution’s action. 53. Likewise, the passage of time must be taken into account by the institution concerned in so far as it may lessen the intensity of the public interest considerations justifying the general confidentiality of legal advice to the point of tipping the scales in favour of the public interest in transparency. That could in particular be the case where the legislative act which had been the subject of the legal opinion requested has, in the meantime, been repealed. 54. In the present case, the Council thus had to balance the need to protect legal advice, related to the safeguarding of the stability of the Community legal order and the independence of the advice of its legal service, against the public interest in transparency. That duty of striking a balance, which lies with the institution concerned, cannot be limited, contrary to the findings of the Court of First Instance in the judgment under appeal, (44) to the prior demonstration by the applicant that, having regard to the specific facts of the case, the principle of transparency is so pressing that it overrides the need to protect the legal opinion in question. That would be to forget that one of the fundamental reasons for the specific and individual examination imposed on the institution concerned lies in that duty of balancing public interests. (45) It would above all place on the applicant a burden of proof which is far too heavy: how could he show the interest in disclosing a legal opinion notwithstanding the general interest in keeping it confidential when he does not know its content? He will, as in the present case, more often than not be reduced to relying on the overriding public interest in general terms. Only the Council can, – and must –, carry out such an assessment on the basis of the content of the document in question and of the specific circumstances of the case. Moreover, in a decision subsequent to the judgment which is the subject of the present appeal, the Court of First Instance seems no longer to wish to place such a burden of proof on the applicant. It held that the fact that a party requesting access does not invoke a public interest distinct from the principles of transparency and democracy ‘does not automatically imply that it is unnecessary to weigh up the interests at stake’ in so far as ‘the invocation of those same principles may, in the light of the particular circumstances of the case, be so pressing that it overrides the need to protect the documents in question.’ (46) 55. By holding that the overriding public interest capable of justifying the disclosure of a document must, as a rule, be distinct from the principles of transparency, openness and of democracy or of the participation of citizens in the decision-making process which underlie Regulation No 1049/2001, unless the applicant adduces evidence to establish that, having regard to the specific facts of the case, the invocation of those same principles is so pressing that it overrides the need to protect the document requested, the Court of First Instance thus misinterpreted the last phrase of Article 4(2) of Regulation No 1049/2001 and, consequently, erred in law. b) The review of the balancing of public interests 56. Mr Turco, supported by the Netherlands Government, also complains that the Court of First Instance did not grant his application for measures of organisation of procedure to have the Council asked to submit the legal opinion in question to the Court of First Instance. In so doing, that Court did not give itself an opportunity to review whether the Council had properly assessed the opposing public interests. It is, in fact, for that Court of First Instance to review the Council’s balancing of public interests which is required by the use of the exception on the ground of confidentiality in respect of legal advice, whilst leaving to that institution a wide discretion. Effective judicial review will normally require the Court of First Instance to have become aware of the content of the legal advice in question, whilst keeping it confidential from the applicant, as permitted under Article 67(3) of its Rules of Procedure. Moreover, for that purpose, the Court of First Instance generally calls on the institution concerned to produce the legal opinion in question. (47) The usefulness of such a measure of organisation of procedure still, however, depends on an assessment to be carried out by the Court of First Instance in each case. In the present case, since, as has been demonstrated, the Court of First Instance misinterpreted the concept of an overriding public interest which would justify a derogation from the confidentiality of legal advice, it is neither necessary nor even possible to give an opinion on the merits of the plea raised by Mr Turco in that regard. III – Judgment on the substance of the case 57. Under Article 61 of the Statute of the Court, if the appeal is well founded, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits. That applies in the present case. It is apparent from the statement of reasons in the contested decision that the Council refused to disclose the legal opinion in question in the name of the overriding public interest relied on by Mr Turco because it took the view that the overriding public interest referred to in the last phrase of Article 4(2) of Regulation No 1049/2001 cannot be constituted by the public interest in transparency and in the openness of the decision-making process. On the basis of that legally flawed analysis, the Council did not assess whether the public interest in transparency might not, in the present case, prevail over the need for protection which, as a rule, justifies the confidentiality of legal advice and, thus, justify the disclosure of the legal opinion requested. Consequently, the plea in law raised by Mr Turco at first instance, according to which the Council did not examine the existence of the overriding public interest which he was invoking, is well founded. On those grounds, the contested decision refusing disclosure must be annulled. IV – Conclusion 58. On the grounds set out above I suggest that the Court should: – set aside the judgment of the Court of First Instance of the European Communities of 23 November 2004 in Case T-84/03 Turco v Council as being vitiated by a breach of Community law consisting in a misinterpretation and a misapplication of the last phrase of Article 4(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; – annul the decision of the Council of 19 December 2002 which refused Mr Maurizio Turco access to the opinion of its legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. 1 – Original language: French. 2 – Case T‑84/03 Turco v Council [2004] ECR II‑4061. 3 – 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 (OJ 2001 L 145, p. 43). 4 – See paragraph 78 of the judgment under appeal. 5 – Judgment under appeal, paragraph 79. 6 – Ibidem. 7 – Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 81, and judgment of 11 January 2007 in Case C-404/04 P Technische Glaswerke Ilmenau v Commission, not published in the ECR, paragraph 90. 8 – For a recent restatement, see Case C-266/05 P Sison v Council [2007] ECR I‑1233, paragraph 63, and Case T-36/04 API v Commission [2007] ECR II-0000, paragraph 53. 9 – Paragraph 61 of the judgment under appeal. 10 – See code of conduct concerning public access to Council and Commission documents of 6 December 1993 (93/730/EC) (OJ 1993 L 340, p. 41); Council Decision 93/731/EC of 20 December 1993 (OJ 1993 L 340, p. 43); Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 (OJ 1994 L 46, p. 58); and European Parliament Decision 97/632/EC, ECSC, Euratom of 10 July 1997 (OJ 1997 L 263, p. 27). 11 – Case T-92/98 Interporc v Commission [1999] ECR II-3521, paragraph 41. 12 – The Court of First Instance has, moreover, explicitly held that this is the case: see Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [2006] ECR II-2023, paragraph 89, and API v Commission, paragraph 60. 13 – Paragraph 65 of the judgment under appeal. 14 – See the Order of the President of the Court of First Instance in Case T-610/97 R Carlsen and Others v Council [1998] ECR II-485. 15 – Academic legal writing has not, moreover, been mistaken in regarding that as a restatement of the approach in Carlsen: see in particular, De Leeuw, M.E., ‘The regulation on public access to European Parliament, Council and Commission documents in the European Union: are citizens better off?’, ELR Vol. 28 (2003), no 3, p. 324, 334, and Peers, S., ‘The new regulation on access to documents: a critical analysis’, YEL 2002, p. 385, 400. 16 – Proposal for regulation 2000/C 177 E/10 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2000 C 177 E, p. 70). 17 – Proposal compromise drafted by the French presidency in December 2000 (Doc. 14938/00 of 22 December 2000). 18 – Amended proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (COM (2001) 299 final, OJ 2001 C 240 E, p. 165). 19 – See inter alia Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27; Case T-124/96 Interporc v Commission [1998] ECR II-231, paragraphs 49 to 52; Case T-174/95 Svenska Journalistförbundet v Council [1998] ECR II-2289, paragraphs 110 to 112; Case T-204/99 Mattila v Council and Commission [2001] ECR II-2265, paragraph 87; and Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraphs 55 and 56. 20 – See inter alia Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraphs 26 to 30; Case T-123/99 JT’s Corporation v Commission [2000] ECR II-3269, paragraph 44; and Kuijer v Council, paragraph 57. 21 – In respect of that ‘promotion’ of the right of access to documents, I refer to the demonstration in my Opinion in Case C-64/05 P Sweden v Commissionand Others (points 37 to 40), which is still pending before the Court. 22 – See in particular Sison v Council, paragraphs 61 to 63. 23 – For a restatement of that obligation to make a specific and individual assessment, see most recently API v Commission, paragraphs 54 to 56; see, previously, Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraphs 69 to 74; Case T‑237/02 Technische Glaswerke Ilmenau v Commission [2006] ECR II-0000, paragraphs 77 to 79; and Franchet and Byk v Commission, paragraphs 105 and 115 to 117. 24 – Paragraph 69 of the judgment under appeal. 25 – Paragraph 70 of the judgment under appeal. 26 – Paragraphs 71 and 72 of the judgment under appeal. 27 – See paragraph 75 of the judgment under appeal. 28 – See inter alia JT’s Corporation v Commission, paragraphs 46 and 65; Franchet and Byk v Commission, paragraph 130; Technische Glaswerke Ilmenau v Commission, paragraphs 77 and 80 to 83, and API v Commission, paragraphs 66 to 68. 29 – See inter alia Sison v Council, paragraph 83, and API v Commission, paragraph 67. 30 – Paragraph 74 of the judgment under appeal. 31 – Opinion in Case C-350/92 Spain v Council [1995] ECR I‑1985, I-1988, point 35. 32 – See above, point 26 of the Opinion. 33 – See the order in Carlsen and Others v Council, paragraph 46. 34 – Order in Case C-445/00 Austria v Council [2002] ECR I-9151, paragraph 12; Case T-44/97 Ghignone and Others v Council [2000] ECR‑SC I‑A‑223 and II-1023, paragraph 48; and Case T-357/03 Gollnisch and Others v Parliament [2005] ECR II‑1, paragraph 34. 35 – Carlsen and Others v Council, paragraph 50. 36 – Paragraphs 78 and 79 of the judgment under appeal. 37 – Technische Glaswerke Ilmenau v Commission, paragraph 85, and API v Commission, paragraph 57. 38 – See Franchet and Byk v Commission, paragraphs 104 to 134. 39 – See Kuijer v Council. 40 – See, to that effect, API v Commission, paragraph 54. 41 – As has been correctly pointed out in academic legal writing: see in particular Kranenborg, H.R., ‘Is it time to revise the European regulation on public access to documents?’, European public law Vol. 12, 2006, no 2, p. 251, in particular pp. 259, 261 and 262. 42 – Opinion in Sison v Council, point 27. 43 – Case T-264/04 WWF European Policy Programme v Council [2007] ECR II‑0000, paragraph 44. 44 – See paragraph 83 of the judgment under appeal. 45 – See API v Commission, paragraph 54. 46 – Ibidem, paragraph 97. 47 – See Mattila v Council and Commission, paragraph 18; Kuijer v Council, paragraph 21; and Franchet and Byk v Commission, paragraph 36.