Opinion of the Advocate General — ECLI:EU:C:2014:88
Date: 2014-02-13
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - unfounded
Origin: Belgium

Summary — Judgment of the Court (First Chamber), 3 July 2014 1. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Refusal based on a number of exceptions — Lawfulness (European Parliament and Council Regulation No 1049/2001, recitals 4 and 11 and Arts 1 and 4) 2. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to state reasons — Scope (European Parliament and Council Regulation No 1049/2001, recital 11 and Art. 4(1)(a)) 3. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Duty to balance relevant interests — Meaning as regards the documents underlying the legislative process (European Parliament and Council Regulation No 1049/2001, recital 2 and Arts 2(3) and 4(2) and (3)) 4. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the public interest — Judicial review — Scope — Limits (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a)) 5. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Obligation for the institution to examine whether the act is in the nature of legal advice and the specific possibility of the protection of legal advice being undermined, and to ascertain whether there is any overriding public interest justifying disclosure (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) 1. See the text of the decision. (see paras 46-48, 100) 2. See the text of the decision. (see paras 51, 52, 64) 3. If an institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is for that institution to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 in the preamble to Regulation No 1049/2001, from increased openness, in that this 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, those considerations being of particular relevance where the institution is acting in its legislative capacity. The non-legislative activity of the institutions does not fall outside the scope of Regulation No 1049/2001, since Article 2(3) of that regulation states that the latter applies to all documents held by an institution, that is to say, drawn up or received by it and in its possession, in all areas of EU activity. (see paras 53, 106, 107) 4. See the text of the decision. (see para. 63) 5. As regards the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the examination to be undertaken by an institution when it is asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in that provision. Accordingly, the institution must first satisfy itself that the document which it is asked to disclose does indeed relate to legal advice. Secondly, it must examine whether disclosure of the parts of the document in question which have been identified as relating to legal advice would undermine the protection which must be afforded to that advice, in the sense that it would be harmful to an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Thirdly and lastly, if the institution takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on that institution to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would thereby be undermined. (see paras 95, 96)