Case T‑710/14

Herbert Smith Freehills LLP

v

Council of the European Union

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to discussions preceding the adoption of the Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of legal advice — Rights of the defence — Overriding public interest’

Summary — Judgment of the General Court (Eighth Chamber), 15 September 2016

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Overriding public interest justifying the disclosure of documents — Invocation of the principle of transparency — Need to put forward particular considerations in relation to the case

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Scope — Exchanging of legal views between the legal services of three institutions concerning the adoption of a legislative text in the context of a trilogue — Inclusion

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Concept of legal advice — Legal advice emanating from an author external to the institution and sent to the legal services of other institutions — Included

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Obligation on the institution to examine the nature of the measure as legal advice and the actual possibility of the protection of legal advice being undermined, and to verify the absence of a higher public interest justifying disclosure — Disclosure of legal opinions concerning legislative processes — Obligation on the institution to state in detail its reasons for any decision refusing access

See the text of the decision. (see paras 29-33)

If an institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming, as noted in recital 2 of Regulation No 1049/2001, from increased openness, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Those considerations are clearly of particular relevance where the Council 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 of 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. (see paras 34, 35)

As regards the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the examination to be undertaken by the Council when it is asked to disclose a document must necessarily be carried out in three stages corresponding to the three criteria in that provision. Accordingly, the Council must first be satisfied that the document it is being asked to disclose does indeed relate to legal advice. Second, it must examine whether disclosure of the parts of the document in question that have been identified as relating to legal advice would undermine the protection that must be afforded to that advice, in the sense that it would be harmful to an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The likelihood of that interest being compromised must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Third and lastly, if the Council takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on the Council 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 be compromised thereby. In so far as the interest in protecting the independence of the an institution’s legal service could be compromised by disclosure of opinions of the Council’s Legal Service issued in the course of legislative procedures, that likelihood would have to be weighed up against the overriding public interests underlying Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of that regulation. Regulation No 1049/2001 thus imposes, in principle, an obligation to disclose the opinions of an institution’s legal service relating to a legislative process. 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. (see paras 42-45)

The concept of ‘legal advice’, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001, relates to the content of a document and not to its author or its addressees. As is apparent from a literal interpretation of the words ‘legal advice’, this is a question of advice relating to a legal issue, regardless of the way in which that advice is given. In other words, it is irrelevant, for the purposes of applying the exception relating to the protection of legal advice, whether the document containing that advice was provided at an early, late or final stage of the decision-making process. In the same way, the fact of the advice having been given in a formal or informal context has no effect on the interpretation of those words. Moreover, the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. In that regard, whilst, as a general rule, an institution seeks advice from its own legal service, there is nothing to prevent that institution, where appropriate, from outsourcing its request for that advice. That is the case, for example, where the institution in question seeks advice from a law firm. Accordingly, the question whether the legal advice emanates from an internal or external author is irrelevant so far as the institution relying on the exception relating to the protection of advice is concerned. Similarly, there is also nothing to prevent the institution which has invoked the exception relating to the protection of legal advice from sharing that advice with ‘a third party’. The fact that a document containing legal advice issued by an institution has been sent to the legal services of other institutions or to a Member State does not alter, as such, the nature of that document. Accordingly, it does not follow from the second indent of Article 4(2) of Regulation No 1049/2001 that legal advice must be issued by an institution for internal use only. (see paras 48, 50-54)

The exchanging of legal views between the legal services of three institutions in order to reach a compromise regarding a legislative text in the context of a trilogue under Article 294 TFEU may, where appropriate, be described as legal advice and, as a result, may fall under the exception relating to legal advice laid down by the second indent of Article 4(2) of Regulation No 1049/2001. The legal services act under a mandate and with the aim of reaching an agreement. They thus simultaneously act as negotiators and advisers with regard to legal matters. (see paras 59, 60)

See the text of the decision. (see paras 67-69, 72)

As regards an applicant’s need to obtain disclosure of documents requested under Regulation No 1049/2001 on the basis of an overriding interest in order to be in a position better to prepare for its involvement in national court proceedings, such an argument does not, as such, constitute a public interest justifying disclosure that is capable of prevailing over the protection of confidentiality, within the meaning of Article 4 of Regulation No 1049/2001. Taking into account the general principle of access to documents as affirmed in Article 15 TFEU and recitals 1 and 2 of that regulation, that interest must be objective and general in nature and must not be indistinguishable from individual or private interests. (see para. 74)