Case T-63/10

Ivan Jurašinović

v

Council of the European Union

‛Access to documents — Regulation (EC) No 1049/2001 — Request for access to certain documents exchanged with the International Criminal Tribunal for the Former Yugoslavia in the course of a trial — Refusal of access — Risk of undermining the protection of international relations — Risk of undermining the protection of court proceedings and legal advice’

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 3 October 2012

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 — International relations — Scope — Council decision refusing access to documents exchanged between the institutions of the European Union and the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the context of a trial before that tribunal — Exception applicable, as regards those documents, only to the reports of the European Union observers annexed to the correspondence between the institutions of the European Union and the ICTY — Application of the exception well founded

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from third parties — Requirement for prior consultation of the third parties concerned — Scope — Documents exchanged between (i) the Prosecutor or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and (ii) the High Representative of the Union for Foreign Affairs and Security Policy in the context of a trial before that tribunal — Access refused on the basis that those documents may not be made accessible under the ICTY rules on transparency — Not permissible

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 court proceedings — Scope — Documents exchanged between (i) the Prosecutor or a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia and (ii) the High Representative of the Union for Foreign Affairs and Security Policy in the context of a trial before that tribunal — Included — Reports of the European Union observers present in Croatia from 1 to 31 August 1995 — Not included

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 court proceedings — Scope — Proceedings taking place before a court or tribunal which is not within the legal order of the European Union or those of its Member States — Included

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Council decision refusing access to documents exchanged between the institutions of the European Union and the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the context of a trial before that tribunal — Refusal based on the exceptions relating to the protection of international relations and the protection of court proceedings and legal advice — Reference in the contested decision to the ICTY Rules of Procedure and Evidence — No effect on the lawfulness of the refusal

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 court proceedings — Overriding public interest justifying the disclosure of documents — Requirement that the institution should weigh up the opposing interests

Actions for annulment — Actionable measures — Council decision refusing access to documents — Documents made available by a third party — Action devoid of purpose — Refusal concerning documents exchanged between the institutions of the European Union and the International Criminal Tribunal for the Former Yugoslavia in the context of a trial before that tribunal — Not possible to regard the documents as made available to the public

An action for the annulment of a decision refusing access to documents becomes devoid of purpose when the documents in question have been made accessible by a third party and the applicant can access them and use them in a way which is as lawful as if he had obtained them as a result of an application under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. However, documents exchanged between the institutions of the European Union and the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the context of a trial before the ICTY cannot be regarded as made available to the public where (i), although the contested decision states that they were made available to the public by the ICTY by means of its court records database and its website, no copy of those documents has been produced by either of the parties to the trial, (ii) no specific reference has been given as to where they appear on the ICTY website and (iii) it is possible that, although they may have had public status at the date of the contested decision, under the rules on transparency of the ICTY, such documents have been reclassified by it as confidential. (see paras 24-25)

See the text of the decision. (see paras 28-31)

See the text of the decision. (see paras 32-34)

It is clear from the broad logic of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and from the objectives of the relevant European Union rules that judicial activities are as such excluded from the scope of the right of access to documents established by those rules. That exclusion, without drawing any distinction between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument between the parties and the deliberations of the court concerned in the case before it take place in an atmosphere of total serenity. None the less, where an institution takes the view that disclosure of a document would undermine the protection of court proceedings, as laid down in the second indent of Article 4(2) of that regulation, it is incumbent on it to ascertain whether there is any overriding public interest justifying disclosure despite the resulting adverse effect on the serenity of the exchange of argument and on the deliberations of the court concerned in the case in question. In that respect, it is for the institution to weigh up 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 the preamble to the regulation, from increased transparency, 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 paras 35, 37-39)

See the text of the decision. (see paras 44-48)

Although, in view of the objectives pursued by Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the exceptions which it lays down must be interpreted and applied strictly, the regulation does not specify, regarding the scope of the second indent of Article 4(2), which are the courts whose proceedings may be protected against the risk of being undermined that would arise from the disclosure of one or more documents. As a general rule, the provisions of Article 4 of Regulation No 1049/2001 laying down the exceptions on the basis of which an institution receiving a request for access to documents held by it may refuse to disclose them do not establish a connection between the interests to be protected in the event of a risk of undermining their protection and the European Union or its Member States. Only the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 expressly provides that access to a document is to be refused where disclosure would undermine the protection of the public interest as regards the financial, monetary or economic policy of the Community or a Member State. With regard to Article 4(3) of Regulation No 1049/2001, it also concerns the European Union since the aim of that provision is to protect the decision-making process of an institution. Were there acceptance of an interpretation whereby only court proceedings taking place before a Court of the European Union or a court of one of the Member States could be protected under the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001, such an interpretation could be applied to any exception provided for by Article 4. For example, if the protection of the public interest as regards public security were invoked, all that would be covered would be public security in the European Union or in one or more of the Member States. The same would apply if it were a question of protecting the commercial interests of a particular natural or legal person, which could not include the interests of natural or legal persons residing in or established outside the European Union. A contextual interpretation of that kind of Article 4 of Regulation No 1049/2001 cannot be accepted. No argument based on the wording of that article can lead to the conclusion that the court proceedings referred to in the second indent of Article 4(2) are solely proceedings before the Courts of the European Union or the courts of the Member States. That conclusion is reinforced by a reading of the whole of Regulation No 1049/2001, which establishes a connection with the European Union or the Member States only for certain aspects of the rules which it lays down. Consequently, there is nothing in Regulation No 1049/2001 that prevents the court proceedings which the exception under the second indent of Article 4(2) aims to protect from taking place before a court which does not form part of the legal system of the European Union or the legal systems of the Member States, the exception thus being capable of protecting, inter alia, court proceedings taking place before the ICTY. (see paras 55-60, 65)

The expression ‘court proceedings’, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is to be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of documents drawn up solely for the purposes of specific court proceedings. Documents exchanged between, on the one hand, the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the Trial Chamber of the ICTY and, on the other, the High Representative of the Union for Foreign Affairs and Security Policy in the context of a trial before that tribunal may, as a rule, be protected from any disclosure, applied for under Regulation No 1049/2001, on the basis of the exception relating to the protection of court proceedings, laid down in the second indent of Article 4(2) of the regulation, provided that the documents concern an aspect of the organisation of a trial and reveal the way in which the judicial authorities of the ICTY decided to conduct the proceedings, as well as the reactions of the defence and a third party to the measures taken by those authorities to obtain the evidence necessary for the proper conduct of the proceedings. That is not the case, however, of the reports of the European Union observers present in Croatia from 1 to 31 August 1995, exchanged between the institutions of the European Union and the ICTY, which, since they were drawn up more than 10 years before the commencement of the trial in question, cannot be regarded as having been drawn up solely for the purposes of court proceedings. (see paras 66, 74-76)

Although, as regards third-party documents, consultation of the third party is, as a general rule, a precondition for determining whether the exceptions to the right of access provided for in Article 4(1) and (2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents are applicable, consultation of a third party other than a Member State, provided for by Article 4(4) of Regulation No 1049/2001, does not bind the institution, but must enable it to assess whether an exception provided for by paragraph 1 or 2 of that article is applicable. In relying merely on the fact that the documents exchanged between, on the one hand, the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the Trial Chamber of the ICTY and, on the other, the High Representative of the Union for Foreign Affairs and Security Policy in the context of a trial before that tribunal were not accessible under the ICTY transparency rules, which are not, moreover, clearly identified in the contested decision, in order to conclude that there was a likelihood that the protection of court proceedings would be undermined, the Council must be regarded as having considered itself bound merely by the explanation given by the ICTY. In acting thus, the Council surrendered the discretion which it was for it to exercise for the purpose of determining whether the exceptions to access to documents provided for by Regulation No 1049/2001, in particular the second indent of Article 4(2), were applicable and it therefore made an error of law. (see paras 83, 87-88, 90)