Judgment;Abstract — ECLI:EU:T:2023:15
Date: 2023-01-25
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - successful
Origin: Belgium

summary tables. Documents WK 14969/17, of 19 December 2017, and WK 14969/17 REV 1, of 8 January 2018, contain notes of the Presidency of the Council addressed to the working group in question, in which the Presidency noted, inter alia, cross-referencing errors in the legislative proposal, proposed amendments designed to clarify the wording of a provision and put forward a point which had yet to be discussed, namely that of finding a more appropriate drafting for certain provisions in order to avoid the risk of circumvention of the application of the directive for certain undertakings. Document WK 6662/18, of 1 June 2018, contains an invitation from the Presidency to a meeting of the working group aimed at continuing work on the legislative proposal in question, which states that delegations are invited to comment inter alia on the proposals contained in the previous documents. 72 In the contested decision, the Council justified its refusal of access to the documents at issue on a number of grounds. 73 First, in paragraph 9 of the contested decision, the Council stated that the subject of the tax transparency of multinational undertakings was ‘highly sensitive’ from a political point of view. 74 In that regard, it is apparent from the full version of the documents at issue, now disclosed, that they contain proposals and amendments to legislative texts which form part of the normal legislative process. However, the Council does not identify, either in the contested decision or before the Court, any concrete and specific aspect of those documents of a particularly sensitive nature. 75 Moreover, it should be noted, as the Council itself points out in the contested decision, that, in its conclusions of 18 December 2014, the European Council considered that there was ‘an urgent need to advance efforts in the fight against tax avoidance and aggressive tax planning, both at the global and EU levels’ and that the Parliament had adopted a resolution on 16 December 2015 with recommendations to the Commission on bringing transparency, coordination and convergence to corporate tax policies in the European Union (2015/2010 (INL)). Those documents show the great importance for European citizens of the subject of the tax transparency of multinational undertakings, which militates in favour of the widest possible access to the relevant legislative documents, and not in favour of restricted access. Access to all the information forming the basis for EU legislative action is a precondition for the effective exercise by Union citizens of their democratic rights as recognised, in particular, in Article 10(3) TEU (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 92). 76 Accordingly, whilst relating to a matter of some importance, possibly characterised by both political and legal difficulty, there is nothing in the contested decision to suggest that the content of the documents at issue is particularly sensitive to the point of jeopardising a fundamental interest of the European Union or of the Member States if disclosed (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 97 and the case-law cited). Moreover, before the Court, the Council also does not specify the specific aspects of the content of those documents which are particularly sensitive. 77 Second, in paragraph 21 of the contested decision, the Council submits that the legislative proposal at issue was the subject of ongoing discussions and that the documents at issue were not exhaustive and did not necessarily reflect the definitive positions of the Member States. 78 In that regard, it should be borne in mind that the preliminary nature of the discussions relating to the legislative proposal in question does not justify, as such, the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001. That provision makes no distinction according to the state of progress of the discussions. It envisages in general the documents relating to a question where a ‘decision has not been taken’ by the institution concerned, by contrast with the second subparagraph of Article 4(3), which envisages the situation where a decision has been taken by the institution concerned. In the present case, the preliminary nature of the ongoing discussions and the fact that no agreement or compromise has been reached within the Council on those proposals do not therefore establish that the decision-making process has been seriously undermined (see, to that effect, judgments of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraphs 75 and 76, and of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 100). 79 Similarly, according to the case-law, a proposal is, by its nature, intended to be discussed and is not liable to remain unchanged following such discussion. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently. For precisely the same reasons, an applicant for access to legislative documents in the context of an ongoing procedure will be fully aware of the preliminary character of the information contained therein and of the fact that it is intended to be amended throughout the discussions in the course of the preparatory work of the Council working group until agreement on the whole text is reached (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 102 and the case-law cited). This is particularly evident from the objective pursued in the present case by the request for access, in that the applicant sought to know the positions expressed by the Member States within the Council specifically in order to generate a debate in that regard before that institution established its position in the legislative procedure in question (see paragraph 14 above). 80 Third, the Council noted, in paragraph 22 of the contested decision, that the elements set out in the documents at issue were the result of ‘difficult negotiations’ between the Member States and reflected the difficulties which it still had to resolve before reaching an agreement. 81 However, in the contested decision, the Council does not specify which concrete and specific ‘elements’ of the documents at issue would have been sources of difficulties such that their disclosure could have seriously undermined its decision-making process. Moreover, the reason that some of the proposed amendments reflected in the documents at issue had yet to be discussed before an agreement was reached is too general and capable of applying to any document of a legislative nature drawn up or exchanged within the framework of a Council working group. 82 Fourth, in paragraph 23 of the contested decision, the Council stated that the documents at issue contained free and frank discussions between Member States, the disclosure of which at that stage of the ‘negotiations’ would damage the mutual confidence which governs the work of Council working groups. 83 However, the Council has not produced any tangible evidence to show that, as regards the legislative procedure at issue, access to the documents at issue would have harmed the Member States’ cooperation in good faith. The risk invoked thus appears to be hypothetical. Moreover, since Member States express, in the context of Council working groups, their respective positions on a given legislative proposal, and accept that their position could evolve, the fact that those elements are then disclosed, on request, is not in itself capable of undermining the sincere cooperation which the Member States and the institutions are required to exercise among themselves pursuant to Article 4(3) TEU (see, by analogy, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraphs 103 and 104). 84 Although, by the ground relied on in paragraph 23 of the contested decision, the Council alluded to a risk of public pressure, as it submits in the defence, it should be recalled that, in a system based on the principle of democratic legitimacy, co-legislators must be answerable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information (judgment of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 69). Furthermore, Article 10(3) TEU states that every citizen is to have the right to participate in the democratic life of the Union and that decisions are to be taken as openly and as closely as possible to the citizen. Thus, the expression of public opinion with regard to a particular legislative proposal forms an integral part of the exercise of Union citizens’ democratic rights (judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 98). 85 Although it has been recognised in the case-law that the risk of external pressure can constitute a legitimate ground for restricting access to documents related to the decision-making process, the reality of such external pressure must, however, be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure. There is no tangible evidence in the case file establishing, in the event of disclosure of the documents at issue, the reality of such external pressure. Therefore, nothing in the case file before the Court suggests that, as regards the legislative procedure in question, the Council could reasonably expect there to be a reaction beyond what could be expected from the public by any member of a legislative body who proposes an amendment to draft legislation (see, to that effect, judgments of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 74, and of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 99). 86 Fifth, in paragraphs 23 and 24 of the contested decision, the Council explained that disclosure of the documents at issue would seriously undermine the effectiveness of its decision-making process and would reduce the chances of reaching an agreement. 87 However, the ground relied on in paragraphs 23 and 24 of the contested decision is still too general, in that the Council does not explain how access to the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the possibility of reaching an agreement on the legislative proposal in question. 88 Sixth, in paragraphs 25 and 27 of the contested decision, the Council stated that the legitimate public interest justifying disclosure of the documents at issue did not outweigh the equally legitimate need to protect the decision-making process. 89 By the ground relied on in paragraphs 25 and 27 of the contested decision, the Council appears to confuse, as the applicant submits, two separate stages in the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001. It is only if the institution concerned considers that disclosure of a document would specifically and actually undermine the decision-making process in question that it is then required to ascertain whether an overriding public interest nevertheless justifies disclosure of the document concerned. In other words, it is in that context that it is for the Council 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 of that regulation, 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 (see, by analogy, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P et C‑52/05 P, EU:C:2008:374, paragraph 45). 90 Seventh, in paragraph 26 of the contested decision, the Council stated that the refusal to disclose a limited number of documents covered by the applicant’s request does not amount to denying citizens the possibility of being informed of the decision-making process in question. 91 In that regard, as the applicant has acknowledged and as has, moreover, the Council, the ground relied on in paragraph 26 of the contested decision is not a relevant criterion for assessing whether the conditions for refusal under the first subparagraph of Article 4(3) of Regulation No 1049/2001 are met. The mere fact that access to certain documents relating to the same legislative procedure has been granted cannot justify the refusal of access to other documents. 92 Eighth, the Council submits, in paragraph 28 of the contested decision, that, ‘following its specific assessment of the content and context’ of the documents at issue, it concluded that there were objective reasons demonstrating that there was a reasonably foreseeable risk that disclosure of those documents would seriously undermine the decision-making process in question. 93 However, that alleged ‘specific assessment of the content and context’ of the documents at issue is not apparent from the contested decision, with the result that the risk that the decision-making process would be seriously undermined is not substantiated by any tangible, concrete and specific evidence. 94 Lastly, in its written pleadings before the Court, the Council adds that it is necessary to distinguish between documents drawn up in the context of trilogues which were the subject of the judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167), and the documents at issue. In its view, documents drawn up in the context of trilogues are involved at a stage of the legislative procedure in which it has already adopted its position on a legislative proposal, whereas the documents at issue relate to discussions within working groups between officials of the delegations of the Member States acting at ‘technical level’. In the present case, the documents at issue concern preparatory work and have no political implications so long as they are not submitted, as such, to the Committee of Permanent Representatives (Coreper), or subsequently to one of the ministerial formations of the Council. 95 Although, by that argument, the Council seeks to justify less extensive access to documents drawn up by its working groups because of their allegedly ‘technical’ nature, first of all, it must be pointed out that whether or not a document is ‘technical’ is not a relevant criterion for the purposes of the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001. Next, and in any event, the actual content of the documents at issue shows that they contain normative proposals for various legislative texts and that they therefore form part of the normal legislative process. The documents at issue are therefore in no way ‘technical’. Lastly, the members of Council working groups are given a mandate from the Member States that they represent and, at the time of deliberation on a given legislative proposal, they express the position of their Member State within the Council when the Council acts in its capacity as co-legislator. The fact that those working groups are not authorised to adopt the definitive position of that institution does not mean, however, that their work does not form part of the normal legislative process, which, moreover, the Council does not dispute, or that the documents that they draw up are ‘technical’ in nature. 96 In the light of all the foregoing considerations, it must be concluded that none of the grounds relied on by the Council in the contested decision supports the conclusion that disclosure of the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the legislative process, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. 97 Accordingly, the second part of the first plea in law must be upheld and, consequently, the contested decision must be annulled, without it being necessary to examine the other pleas and heads of claim put forward in support of the action. Costs 98 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. Since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant, in accordance with the form of order sought by him. 99 In accordance with Article 138(1) of the Rules of Procedure, the Kingdom of Belgium, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden are to bear their own costs. On those grounds, THE GENERAL COURT (Tenth Chamber, Extended Composition) hereby: 1. Annuls Decision SGS 21/000067 of the Council of the European Union of 14 January 2021; 2. Orders the Council to bear its own costs and to pay those incurred by Mr Emilio De Capitani; 3. Orders the Kingdom of Belgium, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden to bear their own costs. Kornezov Buttigieg Kowalik-Bańczyk Hesse Petrlík Delivered in open court in Luxembourg on 25 January 2023. E. Coulon S. Papasavvas Registrar President * Language of the case: English.