JUDGMENT OF THE COURT (Tenth Chamber)
8 June 2023 (*)
(Appeal – Access to documents – Regulation (EC) No 1049/2001 – Article 4(2), second indent – Protection of legal advice – Article 4(3), first subparagraph – Protection of the decision-making process – Refusal to grant full access to a legal opinion of the Council of the European Union’s Legal Service)
Case C‑408/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 July 2021,
Council of the European Union, represented by A. de Gregorio Merino, E. Dumitriu-Segnana, K. Pavlaki and E. Rebasti, acting as Agents,
appellant,
supported by:
French Republic, represented initially by A.-L. Desjonquères, A.-C. Drouant and E. Leclerc, acting as Agents, and subsequently by A.-L. Desjonquères and E. Leclerc, acting as Agents.
European Commission, represented by C. Ehrbar and P. Stancanelli, acting as Agents,
interveners in the appeal,
the other parties to the proceedings being:
Laurent Pech, residing in London (United Kingdom), represented initially by G. Andraos, avocat,
O. Brouwer, advocaat, M. Hall, advokat, and B.A.R.T. Verheijen, advocaat, and subsequently by G. Andraos, O. Brouwer, T.C. van Helfteren, advocaten, and
M. Hall, advokat,
applicant at first instance,
Kingdom of Sweden, represented initially by O. Simonsson, H. Eklinder, J. Lundberg, C. Meyer-Seitz, A.M. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson and H. Shev, acting as Agents, and subsequently by O. Simonsson, H. Eklinder, C. Meyer-Seitz, A.M. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson and H. Shev, acting as Agents,
intervener at first instance,
THE COURT (Tenth Chamber),
composed of D. Gratsias (Rapporteur), President of the Chamber, I. Jarukaitis and Z. Csehi, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, the Council of the European Union seeks to have set aside the judgment of the General Court of the European Union of 21 April 2021, Pech v Council (T‑252/19, not published, ‘the judgment under appeal’,
EU:T:2021:203), by which it annulled the decision of the Council of 12 February 2019 refusing full access to document ST 13593 2018 INIT containing the opinion of the Legal Service of the Council concerning the proposal by the European Commission, of 2 May 2018, for a regulation of the European Parliament and of the Council on the protection of the European Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final), which led to the adoption of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ 2020 L 443I, p. 1) (‘the decision at issue’).
Legal context
2        Recitals 1, 2, 3 and 6 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 (OJ 2001 L 145, p. 43), read as follows:
‘(1)      The second [paragraph] of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
(2)      Openness 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. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
(3)       … This Regulation consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process.
…
(6)      Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.’
3        In accordance with Article 1(a) of that regulation:
‘The purpose of this Regulation is:
(a)      to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission …
documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents’.
4        Article 4 of that regulation provides in the second indent of paragraph 2 and in paragraphs 3 and 6 thereof:
‘2.      The institutions shall refuse access to a document where disclosure would undermine the protection of:
…
–        court proceedings and legal advice,
…
unless there is an overriding public interest in disclosure.
3.      Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
…
6.      If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.’
5        Article 7(2) of that regulation states:
‘In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.’
Background to the dispute
6        The background to the dispute is set out in paragraphs 1 to 10 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as set out below.
7        On 30 October 2018, following the publication of a press article revealing the existence of an opinion of the Council’s Legal Service on the European Commission proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final) (‘the Commission’s proposal’), Mr Laurent Pech
requested from the Council, pursuant to Regulation No 1049/2001, access to that opinion identified by it as document ST 13593 2018 INIT (‘the requested opinion’).
8        By decision of
10 December 2018, the Council granted partial access to the requested opinion.
9        On 20 December 2018, Mr Pech made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001.
10      By decision of 12 February 2019, the Council confirmed its decision to refuse full access to the requested opinion, on the basis, in the first place, of the first subparagraph of Article 4(3) of Regulation No 1049/2001 relating to the protection of an ongoing decision-making process.
As is clear from paragraph 45 of the judgment under appeal, the Council stated that the Commission’s proposal, which was in the process of being adopted, and the discussions relating to it were complex, that the Member States had publicly expressed diverging positions and that, as a result, those ongoing discussions were delicate.
It added that, in the current legal and political context, the debate on the envisaged measures, seeking to adopt a conditionality mechanism linking EU financing to respect for the rule of law, is particularly sensitive. Thus, if the analysis carried out by the Council’s Legal Service had been disclosed in full, some of the arguments set out therein could have given rise to external interference. According to the Council, the pressure which would have resulted might have complicated the negotiations, allowing members of the Council to accept compromise solutions or to pursue certain options and would thus have affected the possibility of reaching a final agreement on the Commission’s proposal. Furthermore, disclosure could also have limited the options available during interinstitutional procedures, namely during the negotiations with the Parliament and the Commission.
11      In the second place, the Council relied on the second indent of Article 4(2) of Regulation No 1049/2001, taking the view that full disclosure of the requested opinion could compromise the interest of the institution in seeking and receiving frank, objective and comprehensive legal advice. First, in view of its content, the requested opinion fell within the scope of the exception laid down in that provision, since it provided a detailed analysis on legal issues and in particular on the relevance of the legal basis for the Commission’s proposal, its compatibility with the EU Treaties and the legal feasibility of the adoption of measures under the envisaged mechanism. Secondly, the Council stated that, although the requested legal advice related to a legislative procedure for which a particularly high requirement of transparency applied, the issues touched upon were of a ‘systemic’ nature and had a broad scope that went beyond the context of the legislative process in question. Thirdly, the issues analysed in the requested opinion were highly contentious and particularly controversial, which made the legal advice sensitive in the context of the ongoing discussions. Finally, there was a high risk that the legal issues examined would be the subject of future litigation.
12      Regarding the possibility of granting partial access to that opinion, in accordance with Article 4(6) of Regulation No 1049/2001, the Council took the view that all of the parts of the requested opinion which had not been disclosed pursuant to its decision of 10 December 2018, referred to in paragraph 8 of this judgment, were covered in their entirety by the exceptions relied on and that no additional partial access could be granted.
13      Finally, the Council concluded that there was no overriding public interest in disclosure.
The procedure before the General Court and the judgment under appeal
14      By an application lodged with the Registry of the General Court on 15 April 2019, Mr Pech brought an action seeking the annulment of the decision at issue.
15      In support of his action, Mr Pech raised three pleas in law, alleging, first, an error in law and misapplication of the first subparagraph of Article 4(3) of Regulation No 1049/2001, secondly, an error in law and misapplication of the second indent of Article 4(2) of that regulation and, thirdly, raised in the alternative, infringement of Article 4(6) of that regulation.
16      As regards the first plea in law, after stating in paragraph 46 of the judgment under appeal that, at the time when the decision at issue was adopted, the decision-making process intended to lead to the adoption of the Commission’s proposal was ongoing, the General Court held, in paragraph 48 of that judgment, that the decision at issue did not contain any tangible element which would allow the conclusion to be drawn that the risk that the decision-making process might be undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical. In particular, the General Court found that the decision at issue made no mention of the existence of anything undermining, or liable
to undermine, the ongoing decision-making process, or of objective reasons on the basis of which it could reasonably be foreseen that the decision-making process would be undermined if the requested opinion were disclosed.
17      In that regard, the General Court, in paragraph 51 of the judgment under appeal, noted that the Council’s written pleadings also did not make it possible to establish that the risk of serious prejudice to the decision-making process referred to in the decision at issue was reasonably foreseeable. In that context, in paragraphs 52 to 59 of the judgment under appeal, it examined in turn each of the elements relied on by the Council, namely the fact that the requested opinion touched on the legal basis of the regulation proposed, the risk of compromising the Council’s capacity for negotiation and the possibility of reaching an agreement with the Parliament, as well as the complexity of the discussions within the Council and the allegedly sensitive nature of the issue in question, including as regards the conditionality mechanism or the voting system proposed. At the end of that analysis, the General Court concluded that none of the grounds of the decision at issue, considered separately or as a whole, demonstrated that it was reasonably foreseeable and not purely hypothetical that full access to the requested opinion was capable of undermining, specifically and actually, the decision-making process at issue within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. It therefore upheld the first plea in law.
18      Taking account of the fact that, in the decision at issue, the Council had also justified its refusal of full access to the requested opinion by relying on the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the General Court then examined the second plea in law submitted by Mr Pech.
In that regard, the General Court, as a first step, found, in paragraph 82 of the judgment under appeal, that the requested document was, in fact, a legal opinion provided in the context of a legislative process. Next, it stated, in paragraph 85 of the judgment under appeal, that, as regards the question of whether the opinion was particularly sensitive, it was necessary to consider the content of the opinion itself rather than the possibly sensitive nature of the legislative process concerned which was irrelevant in the context of that analysis. As regards the scope of the requested opinion which, according to the Council, was particularly broad, the General Court found, in paragraph 87 of the judgment under appeal, that it could not be inferred from the latter’s claims that that opinion had such scope.
19      The General Court likewise rejected, in paragraph 91 of the judgment under appeal, the Council’s arguments as to the risk of its capacity to defend itself in judicial proceedings being undermined, whilst finding that the fact that the content of the requested opinion had been the subject of leaks in the press could not, in itself, have any bearing on the possibility for the Council to rely on the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001.
20      The General Court lastly also rejected, in paragraph 92 of the judgment under appeal, the Council’s argument that disclosure of the requested opinion could lead to individual members of its Legal Service being personally subject to external pressure, finding that that argument was unsubstantiated and that there was no tangible evidence in the file to establish the reality of such external pressure.
21      Consequently, the General Court upheld the second plea in law and, having found that none of the grounds relied on by the Council in support of its refusal to grant full access to the requested opinion was well founded, annulled the decision at issue without examining the third plea in law, relied on in the alternative.
The procedure before the Court of Justice and the forms of order sought
22      The Council asks the Court to set aside the judgment under appeal, to give a final judgment on the issues that are the subject matter of its appeal and to order Mr Pech to pay the costs of the proceedings.
23      Mr Pech asks the Court to dismiss the appeal as inadmissible and, in any event, as being unfounded, and to order the Council to pay the costs of the proceedings, including those incurred by any interveners.
24      The Kingdom of Sweden contends that the appeal should be dismissed.
25      By decisions of the President of the Court of 7 March and 1 April 2022, the Commission and the French Republic respectively were granted leave to intervene in support of the form of order sought by the Council.
26      The Commission claims that the Court should set aside the judgment under appeal and order Mr Pech to pay the costs of the proceedings.
27      The French Republic contends that the Court should set aside the judgment under appeal.
The appeal
28      In support of its appeal, the Council relies on three grounds of appeal. The first ground of appeal alleges a misapplication of the second indent of Article 4(2) of Regulation No 1049/2001 and a failure to state reasons. The second ground of appeal alleges a distortion of the facts, a failure to state reasons and a misapplication of the first subparagraph of Article 4(3) of that regulation. Finally, the third ground of appeal alleges a breach of Article 113 of the Rules of Procedure of the General Court and distortion of the facts.
Preliminary observations
29      In accordance with its recital 1, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
30      That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in Article 42 of the Charter of Fundamental Rights of the European Union which enshrines the right of access to documents (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).
31      It is apparent from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system. By allowing divergences between various points of view to be openly debated, it also contributes to increasing those citizens’ confidence in those institutions (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 75 and the case-law cited).
32      To those ends, Article 1(a) of that
regulation provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions.
33      It is also apparent from Article 4 of that regulation, which introduces a system of exceptions in that regard, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 77 and the case-law cited). Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 17 October 2013, Council v Access Info Europe,
C‑280/11 P, EU:C:2013:671, paragraph 30 and the case-law cited).
34      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 – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of the interest being so undermined must be reasonably foreseeable and must not be purely hypothetical (judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 31 and the case-law cited).
35      As regards, more specifically, the exception provided for in the second indent of Article 4(2) of that regulation, that provision provides that access to a document is to be refused where disclosure would undermine the protection of legal advice, unless there is an overriding public interest in disclosure of that document.
36      In respect of that exception, the examination to be undertaken by the institution concerned when it is asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in that provision (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 37).
37      First, the institution concerned must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice and, if so, it must decide which parts of it are actually concerned and may, therefore, be covered by that exception (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 38).
38      Secondly, the institution concerned 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’ of that advice (see, to that effect,
judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 40). More specifically in that regard, that exception must be interpreted as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 42).
39      Lastly, thirdly, if the institution concerned 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 (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 44).
40      In that respect, 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 of 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 (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).
41      Those considerations are clearly of particular relevance where the institution is acting in its legislative capacity, as is apparent from recital 6
of Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for 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).
42      In that regard, there appears to be no real risk that is reasonably foreseeable and not purely hypothetical that disclosure of opinions of the Council’s Legal Service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 66). The regulation accordingly imposes, in principle, an obligation to disclose the opinions of the Council’s Legal Service relating to a legislative process (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 68).
43      That finding does not, however, preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 69).
The first ground of appeal
44      The first ground of appeal alleges a misapplication by the General Court of Article 4(2) of Regulation No 1049/2001, and a failure to state reasons. It is divided
into three parts, the first concerning the application by the General Court of the criterion relating to the particularly broad scope of legal advice drawn up in the context of a legislative procedure. The second and third parts concern the application of the criterion of the particularly sensitive nature of that advice.
First part of the first ground of appeal
45      By the first part of its first ground of appeal, the Council criticises the General Court, first, for having infringed its obligation to state reasons in its assessment of the arguments of that institution concerning the alleged particularly broad scope of the requested opinion. The Council submits, in that regard, in the first place, that the reason why the analysis contained in the requested opinion concerning the use of the reversed qualified majority for the adoption of Council implementing acts concerns only the Commission’s proposal is not apparent from the judgment under appeal. In the second place, the General Court did not justify the rejection of the Council’s argument summarised in paragraph 74 of the judgment under appeal, according to which the question concerning the legal framework that applies to budgetary conditionality and its compatibility with other Treaty-based control and sanction instruments is relevant and has broad repercussions for a number of legislative files examined in the context of negotiations relating to the multiannual financial framework.
46      In that regard it is apparent from settled case-law that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (judgment of 4 April 2017, European Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 83 and the case-law cited). The question whether the grounds of a judgment of the General Court are contradictory or insufficient is a question of law, which can form the basis of an appeal. The duty incumbent upon the General Court to state reasons does not, however, require it to provide an account that follows exhaustively and one by one all the arguments advanced by the parties to the case. The reasoning may be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of
6 October 2022, KN v EESC, C‑673/21 P, not published, EU:C:2022:759, paragraph 70 and the case-law cited).
47      In paragraphs 86 and 87 of the judgment under appeal,
the General Court addressed the Council’s arguments based on the particularly broad scope that, in its view, the requested opinion had. The General Court found that the Council had merely stated in the decision at issue that the requested opinion covered matters, such as the legal basis of the proposed act and recourse to the voting system proposed for Council implementing acts, that were ‘systemic’ beyond the context of the legislative process in question. The General Court held, in that regard, that such statements could not confer a particularly broad scope on the requested opinion. In the first place, the fact that that opinion examines the appropriateness of the legal basis of the Commission’s proposal cannot be regarded as conferring on it a scope which goes beyond the legislative process in question. In the second place, as regards the voting system provided for in the proposed act, it is clear from that opinion that that system concerns only the Commission’s proposal. According to the General Court, the reference in the opinion to other regulations with similar mechanisms does not mean that it is a document with a broad scope going beyond the legislative context in question.
48      It must be held that, although brief, the grounds of the judgment under appeal make it possible to understand why the General Court considered that, as regards the proposed voting system, namely reversed qualified majority, the requested opinion concerned only the Commission’s proposal. It is clear from the judgment under appeal that the General Court examined the references made in that opinion to other regulations with similar mechanisms and regarded them as references made merely by way of illustration which were not sufficient to make the requested opinion particularly broad in scope.
49      By contrast, it must be observed that, whilst it set out, in paragraph 74 of the judgment under appeal, the Council’s argument that the issue concerning the legal framework applicable to budgetary conditionality and its compatibility with other Treaty-based control and sanction instruments is an issue relevant for a number of ongoing legislative files in the context of negotiations on the multiannual financial framework, the General Court did not respond to it.
50      However, as is apparent from paragraph 86 of the judgment under appeal, the matters on which the Council’s argument referred to in the preceding paragraph is based did not form part of the statement of reasons for the decision at issue, which, moreover, the Council does not dispute in its written pleadings before the Court of Justice. The General Court stated in paragraph 84 of the judgment under appeal that, according to the decision at issue, the requested opinion ‘touch[ed] upon issues (such as, for instance, the analysis of the legal basis of the [Commission’s] proposal or the recourse to the voting system proposed for the Council’s implementing acts) that [had] a systemic nature … beyond the context of the legislative process in question’.
51      Therefore, given that the General Court examined, in paragraph 87 of the judgment under appeal, the matters relied on in the decision at issue to establish that the issues analysed in the requested opinion had a particularly broad scope, it cannot be criticised for not having responded to the Council’s argument, summarised in paragraph 74 of the judgment, since that argument has no connection with those matters. Moreover, in its appeal the Council does not claim that the decision at issue contained additional reasons as regards the alleged particularly broad scope of the requested opinion which the General Court did not take into account in the judgment under appeal; nor does the Council claim that the General Court distorted the content of the decision at issue in that regard.
52      For the remainder, the Council submits that the findings of the General Court in the judgment under appeal are based on the view that an opinion containing analyses of the appropriateness of the legal basis of a legislative proposal never has a broad scope. By that argument, the Council seeks in fact to challenge not the reasoning of the judgment under appeal but rather the merits of the General Court’s assessment in that regard.
53      Secondly, the Council criticises the General Court for having misinterpreted the criterion relating to the particularly broad scope of legal advice relating to a legislative procedure, in that the General Court refused to address the substance of the requested opinion and to examine specifically whether the legal analysis set out in that opinion was of interest to other pending cases or had ‘broad repercussions’ for them, by declaring simply, without further explanation, that it was apparent from that opinion that it concerned only the Commission’s proposal.
54      In that regard, it must be held that the General Court relied on the analyses contained in the requested opinion concerning the voting system discussed and that, as is apparent from paragraph 87 of the judgment under appeal, it was in relation to those analyses that it found that they concerned only the Commission’s proposal. Accordingly, the General Court cannot be criticised for not having addressed the content of that opinion or for not having examined it specifically.
55      The Council considers, furthermore, that the General Court erred in law in refusing to examine specifically whether the legal analysis in the requested opinion was of interest to other ongoing files or had ‘broad repercussions’ for them.
56      It is sufficient, in that regard, to point out that any analysis of legal texts or concepts carried out by the legal service of an institution in the context of a given legislative process is, by its very nature, capable of being relevant in the context of one or more other legislative processes. That fact alone cannot, however, in the light of the case-law cited in paragraphs 42 and 43 of this judgment, justify the refusal to disclose a legal opinion given by the legal service of an institution in the context of such a process. As is apparent from paragraph 86 of the judgment under appeal, the Council had not put forward, in the decision at issue, any evidence capable of explaining why the issues addressed in the requested opinion were ‘systemic beyond the context of the legislative process in question’.
57      It follows from those considerations that the first part of the first ground of appeal must be rejected.
Second part of the first ground of appeal
58      By the second part of the first ground of appeal, the Council alleges that the General Court erred in law in its examination of the assessment made in the decision at issue as regards the particularly sensitive nature, according to the Council, of the requested opinion having regard to the context in which that opinion was provided.
59      It should be noted in that regard that, according to paragraph 84 of the judgment under appeal, the Council had stated, in the decision at issue, that ‘several issues analysed in the … opinion [were] both highly contentious and critical for the negotiations on the draft legislative act’ and that ‘the full disclosure of this document would further impede the possibility to reach an agreement on the file’, which is why the requested opinion was ‘sensitive’ in the context of the ongoing discussions. The Council added that ‘the proposed instrument, if adopted, [would] have a direct impact on the allocation of funds’ and that a ‘high risk of litigation [could] be expected in this domain’, with the result that ‘disclosure … would negatively affect the ability of the Legal Service to effectively defend decisions taken by the Council before the Union courts on an equal footing with the legal representatives of the other parties to legal proceedings’.
60      The Council disputes, in particular, paragraph 85 of the judgment under appeal, in which the General Court held that the particularly sensitive nature of an opinion such as the requested opinion depends on whether the content of that opinion is of such a nature, whereas the possibly sensitive nature of the legislative process in the context of which that opinion was delivered and of its context is irrelevant for the purposes of that assessment. According to the Council, by refusing to give any weight to the specific context of the legislative process in which the legal advice was requested and provided, the General Court erred in law.
61      As is clear from paragraph 61 of the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97), and from paragraph 58 of the judgment of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98), read together with points 70 to 72 of the Opinion of Advocate General Campos Sánchez-Bordona in Hungary v Parliament and Council (C‑156/21, EU:C:2021:974), to which those judgments refer, in the context of examining whether an opinion such as the requested opinion is particularly sensitive, it is precisely the content of that opinion which must be taken into account. Thus, only an opinion which, even if it concerns an important legislative measure, contains particularly sensitive information may be recognised as sensitive, which is not the case where that opinion includes merely an assessment of elements of interpretation of EU law.
62      Since all of the arguments put forward by the Council in the context of the second part of the first ground of appeal are, in essence, based on the challenge to paragraph 85 of the judgment under appeal, that part must be rejected. In the light of the case-law cited in the preceding paragraph, it must be held that the General Court did not err in law.
63      None of the arguments put forward by the Council are capable of calling that conclusion into question.
64      First, the Council claims that the General Court’s interpretation of the relevant criterion runs counter to the very logic of Regulation No 1049/2001. The latter requires an assessment of the actual risks associated with the disclosure of each document, namely an assessment carried out ‘having regard to the specific context in which disclosure would take place, and not solely on the basis of an abstract examination of its content’.
65      In that regard, it suffices to note that, in the light of what has been recalled in paragraph 61 of the present judgment, the assessment of the particularly sensitive nature of a document by reference to its content in no way prevents the specific assessment of the risks potentially associated with its disclosure. Furthermore,
the Council does not explain why such an assessment would be contrary to the logic of Regulation No 1049/2001, the objective of which, as noted in paragraph 32 of this judgment, is simply to confer on the public as wide a right of access as possible to documents of the EU institutions.
66      Secondly, the Council contends that that interpretation deprives the criterion in question of any practical effect, in so far as no legal question envisaged from an abstract or theoretical point of view can be regarded as intrinsically sensitive. Even if that is the case, such a finding does not prevent, in the light of the case-law cited in paragraph 61 of the present judgment, legal advice such as the requested opinion from being regarded as sensitive at the end of the specific assessment of its content.
67      It is conceivable that a legal opinion, although drawn up in a particularly sensitive legislative context, may only comprise legal assessments that have no originality. Accordingly, if such an opinion does not contain, in addition to those assessments, sensitive information or does not refer to confidential facts, it cannot be considered that legal assessments, in themselves, must not be disclosed to the public merely because they relate, for example, to a controversial legislative initiative.
68      Thirdly and lastly, the Council’s arguments relating to the role of its Legal Service and the risk of compromising that service’s performance of its duties must be rejected. As the Court of Justice stated in paragraph 62 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),
the fear that the independence of a legal service, such as the Legal Service of the Council would be put at risk by the possible disclosure of legal opinions provided by the latter in the context of legislative processes lies at the very heart of the interests protected by the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 which seeks specifically to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. However, mere assertions which are in no way substantiated by detailed arguments and which show only a purely hypothetical risk of that interest being undermined are insufficient to justify the non-disclosure of an opinion
such as the requested opinion (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 63). Accordingly, the General Court cannot be criticised as having erred in law in rejecting the Council’s arguments in that regard.
69      Accordingly, the second part of the first ground of appeal must be rejected.
Third part of the first ground of appeal
70      By the third part of its first ground of appeal, the Council claims that paragraphs 89 to 91 of the judgment under appeal, in which the General Court rejected the Council’s arguments seeking to establish that the requested opinion was sensitive, are vitiated by errors of law. More specifically, the Council criticises, in essence, the General Court for disregarding its claims concerning the actual risk of litigation immediately after the adoption of Regulation 2020/2092, a risk which, moreover, materialised, and the harm that disclosing the requested opinion could have on its ability to defend that regulation before the Courts of the European Union, having regard, in particular, to the principle of equality of arms.
71      It should be borne in mind, first, that according to established case-law and as the Council itself acknowledges, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 82 and the case-law cited). Accordingly, any argument of the Council relating to factual developments that took place after the adoption of the decision at issue cannot succeed.
72      As regards, moreover, the Council’s argument that the General Court distorted the facts by disregarding its claims relating to the risk of litigation following the adoption of Regulation 2020/2092, it should be recalled that such distortion arises, inter alia, where the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence, it being understood that it must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 44 and the case-law cited). It must be held that the Council’s arguments disclose no element capable of showing that there was such a distortion.
73      Secondly, as the General Court recalled, in paragraph 89 of the judgment under appeal, the Court of Justice has already had occasion to hold that the possible difficulty of the legal service of an institution which initially expressed a negative opinion on a
draft legislative act and which is then required to defend the lawfulness of that act if that opinion were published constitutes an argument which is too general to justify an exception to the openness provided for by Regulation No 1049/2001
(judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 65). In the judgment under appeal, the General Court did not disregard any argument put forward by the Council which was not too general within the meaning of the case-law cited in this paragraph. As regards, in particular, the question of the probability threshold in relation to the risk of litigation invoked by the Council, it must be noted that while it is true that the General Court observed that, before it, the Council had merely referred to ‘hypothetical legal actions’, it is clear from paragraph 90 of the judgment under appeal that it required the Council not to adduce evidence of the imminence of litigation concerning the legislative procedure to which the requested opinion related but only to specify how disclosure of that opinion was liable to harm its ability to defend itself in such litigation.
74      Thirdly, it must be held that the Council’s arguments based on the judgments of 31 January 2020, Slovenia v Croatia (C‑457/18, EU:C:2020:65), and of 3 June 2021, Hungary v Parliament (C‑650/18, EU:C:2021:426), are bound to fail, in so far as, unlike the cases which gave rise to those judgments, the requested opinion relates to a legislative procedure (see, to that effect, judgments of 16 February
2022, Hungary v Parliament and Council,
C‑156/21, EU:C:2022:97, paragraph 57, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 54). Accordingly, the General Court did not err in law in not taking into account, in the judgment under appeal, those judgments relied on by the Council.
Furthermore, contrary to what the Council appears to claim, the General Court did not base its assessment of the application, in this case, of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 on the fact that the requested opinion had been the subject of leaks in the press. On the contrary, the General Court pointed out, in paragraph 91 of the judgment under appeal, that that fact could not, in itself, affect the Council’s ability to rely on the exception relating to the protection of legal advice.
75      Although it is true that the General Court referred to those leaks in the last sentence of paragraph 91 of the judgment under appeal, it must be observed that, by that reference, the General Court merely noted, for the sake of completeness, a fact that could support the Council’s obligation to clarify the risk that disclosure of the requested opinion presented. According to the case-law, considerations set out for the sake of completeness cannot, even if they are vitiated by error, lead to the setting aside of the judgment in question (see, to that effect, judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 57 and the case-law cited). Accordingly, the arguments set out in the preceding paragraph, in so far as they are directed against considerations set out for the sake of completeness, must be regarded as ineffective.
76      Fourthly and lastly, as regards the Council’s argument based on the 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), it suffices to note that the general presumption of non-disclosure raised by the Council in its written pleadings, referring to that judgment, concerns documents drawn up for the purposes of court proceedings. However, the content of the decision at issue, as set out in the judgment under appeal, does not show – and indeed the Council does not claim – that the requested opinion had been drawn up for such a purpose.
77      Accordingly, the third part of the first ground of appeal and, accordingly, that ground in its entirety, must be rejected.
The second ground of appeal
78      By its second ground of appeal, which is divided into two parts, the Council alleges the General Court made several errors of law in its interpretation and application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
79      By the first part of the second ground of appeal, the Council submits, in essence, that the General Court erred in law in interpreting and applying the criterion relating to the risk of the decision-making process being seriously undermined. By the second part of this ground of appeal, the Council claims that the General Court erred in law by disregarding the nature and purpose of the requested opinion, which cannot be regarded as a document by which ‘the institution is “acting in its legislative capacity”’.
80      In that respect, it should be recalled that the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides notably that access to a document, drawn up by an EU institution for internal use, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of that document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in that disclosure.
81      According to the case-law, the mere reference to a risk of negative repercussions linked to access to internal documents and the possibility that interested parties may influence the procedure do not suffice to prove that disclosure of those documents would seriously undermine the decision-making process of the institution concerned (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 83).
82      It is apparent from the case-law that the exceptions provided for in Article 4 of Regulation No 1049/2001, which derogate from the principle of the widest possible public access to documents, must be interpreted and applied strictly (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 78 and the case-law cited). It also follows that, in the case of documents forming part of a legislative process, the first subparagraph of Article 4(3) of Regulation No 1049/2001 must be interpreted and applied all the more strictly (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 101).
83      It must be held that, as is apparent from paragraph 45 of the judgment under appeal, the reasons put forward by the Council in the decision at issue to justify the non-disclosure of the requested opinion on the basis of the exception relating to the protection of an ongoing decision-making process, provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, relate, in essence, to the allegedly sensitive nature of the legislative context in which the requested opinion was drawn up and are, in reality, simply reformulations of the reasons relied on by the Council in its assessment based on the second indent of paragraph 2 of that article.
84      In any event, none of the arguments put forward by the Council under its second ground of appeal are capable of calling into question the assessments which led the General Court to reject its arguments based on Article 4(3) of Regulation No 1049/2001. Those arguments must therefore be rejected as unfounded.
85      More specifically, by the first complaint put forward in the first part of the second ground of appeal, the Council claims that the requirement set out in paragraph 48 of the judgment under appeal requiring it to demonstrate the prejudicial nature of disclosure of a document is fundamentally flawed, given that the entire system of exceptions established by Regulation No 1049/2001 is built on a ‘risk assessment exercise’.
86      In that regard, it must be held that, in paragraph 48 of the judgment under appeal, the General Court was fully entitled to find, and did so by correctly applying the case-law cited in paragraphs 34 and 81 of this judgment, that the Council was required to submit tangible elements from which it could be concluded that the alleged risk that its decision-making process might be undermined was, on the date on which the decision at issue was adopted, reasonably foreseeable and not purely hypothetical. Furthermore, the judgment of 1 February 2007, Sison v Council (C‑266/05 P, EU:C:2007:75), on which the Council relies in support of its argument, is not relevant in that regard. It follows from paragraph 82 of that judgment that an institution’s brevity in setting out the reasons for refusing access to a document is justified where there is a need not to undermine the sensitive interests protected by the exceptions to the right of access established by Regulation No 1049/2001 by revealing the information which those exceptions are specifically intended to protect. However, in its written pleadings before the General Court, the Council does not claim that the requested opinion contained such information.
87      By the second complaint put forward in the context of the first part of the second ground of appeal, the Council submits that, in paragraphs 53, 54, 56 and 57 of the judgment under appeal, the General Court adopted an interpretation of Regulation No 1049/2001 which finds that issues such as the legal basis of an act proposed in the context of a legislative procedure and the voting system provided for by such an act or, again, issues linked to a conditionality mechanism such as that set out in the Commission’s proposal, are, by their nature, not sensitive. It also complains that the General Court failed to take account of the early stage of the legislative process in the context of which the requested opinion was drawn up. In addition, by the second part of the second ground of appeal, the Council complains, in essence, that the General Court applied to a document drawn up by its Legal Service the same standard of transparency as that which must be applied to that institution in its legislative capacity.
88      First, contrary to the Council’s submission in its second ground of appeal, the General Court was fully entitled to hold, in paragraphs 48 to 50 of the judgment under appeal, that the general statements contained in the decision at issue did not make it possible to establish that there was a risk that the Council’s decision-making process would be seriously undermined. As is stated in paragraph 47 of that judgment, in order to justify its refusal to grant access to the requested opinion, the Council merely stated that disclosure of that document ‘could’ make it more difficult for the members of the Council to accept compromise solutions or to pursue certain options, thereby limiting the possibility of reaching a final agreement, or that it ‘could’ subsequently limit options during the interinstitutional negotiations. It is sufficient, in that regard, to note that general statements of that kind do not explain how access to the requested opinion could specifically and actually undermine, for the purposes of the case-law cited in paragraph 34 of this judgment, the interest protected by the exception relied on in the present case by the Council, since the mere fact that the requested opinion was drawn up at an early stage of the decision-making process at issue, as is generally the case as regards such opinions, is not capable of constituting such an explanation.
89      Furthermore, the Council claims that the General Court’s approach amounts to depriving the EU institutions of the possibility of refusing access to a document when they examine important or recurrent issues, such as the legal basis of an act, budgetary conditionality or the voting system provided for in that act, thus those issues would, by their nature, not be regarded as sensitive.
90      As is apparent from paragraphs 61 and 66 of this judgment, however, the fact that a document such as the requested opinion deals with recurrent legal issues which are not, in themselves, sensitive in no way prevents that opinion from being recognised as sensitive and, consequently, the access requested being refused.
91      Secondly, the General Court was also entitled, taking into account the specific characteristics of the legislative process and the principle of transparency, to reject, in paragraphs 53, 54, 56 and 57 of the judgment under appeal, the Council’s arguments relating to the ‘risk of polarisation’ of the discussions within that institution. The initiation of a legislative process necessarily involves a debate, which could be polarising and, as the General Court recalled in paragraph 55 of the judgment under appeal referring to the judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 113 and the case-law cited), a lack of information and debate is capable of giving rise to doubts in the minds of citizens, not only as regards the legitimacy of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.
92      Thirdly, the General Court was fully entitled to reject, in paragraph 58 of the judgment under appeal, the Council’s argument seeking to make a distinction between ‘political decision-makers’ and the technical services of the institutions, which, according to the Council, include its Legal Service. The Council claims, more specifically, that it is difficult to regard all the documents produced in a legislative file as being documents by which the institution acts in its legislative capacity.
93      To follow the Council’s line of argument and therefore accept that distinction in the context of a legislative process, namely a distinction between documents produced by ‘political decision-makers’ and those produced by the technical services of the institutions, would amount, in essence, to calling into question entirely the particular status conferred by the case-law on legal opinions drawn up by the legal services of the institutions and relating to a legislative procedure. The General Court was therefore
fully entitled to reject the arguments put forward by the Council in that regard.
94      It follows from the foregoing considerations that the second ground of appeal must be dismissed in its entirety.
The third ground of appeal
95      By its third ground of appeal, the Council complains, in essence, that the General Court infringed Article 113(2)(c) of its Rules of Procedure by failing to reopen the oral part of the procedure pending before it, despite the fact that the Council relied, in the course of the proceedings, on new facts which, according to the Council, were such as to have an influence on the decision to be given. It is thus apparent from its arguments that, while alleging a ‘distortion of the facts’ by the General Court, the Council complains, in essence, that the General Court committed a breach of procedure adversely affecting its interests, within the meaning of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union.
96      It suffices
to recall in that regard that it is clear from the wording of Article 113(2)(c) of the Rules of Procedure of the General Court that the General Court has the power, but not the obligation, to order the reopening of the oral part of the procedure where the conditions for the exercise of that power referred to in that provision are fulfilled. It follows that the rejection by the General Court of an application, such as that made by the Council at first instance, is not of such a nature as to constitute, in itself, an infringement of Article 113(2) (see, to that effect, order of 26 June 2018, Windrush Aka v EUIPO, C‑325/17 P, not published, EU:C:2018:519, paragraph 31).
97      The third ground of appeal must therefore be rejected as unfounded.
98      It follows from all of the foregoing considerations that, as none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
99      Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
100    Since Mr Pech has applied for costs and the Council has been unsuccessful, the latter must be ordered to pay the costs.
101    Article 184(4) of the Rules of Procedure provides that, where, without having brought the appeal itself, an intervener at first instance has participated in the written or oral part of the proceedings before the Court of Justice, the latter may decide that it is to bear its own costs. In the present case, since the Kingdom of Sweden, which intervened at first instance, participated in the proceedings before the Court of Justice, without being the appellant, it must be ordered to bear its own costs.
102    Article 140(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings must be ordered
to bear their own costs.
103    Consequently, the French Republic and the Commission must be ordered to bear their own costs.
On those grounds, the Court (Tenth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Laurent Pech;
3.      Orders the French Republic, the Kingdom of Sweden and the European Commission to bear their own costs.
Gratsias
Jarukaitis
Csehi
Delivered in open court in Luxembourg on 8 June 2023.
A. Calot Escobar
D. Gratsias
Registrar      President of the Chamber
*      Language of the case: English.