Appeal brought on 2 July 2021 by the Council of the European Union against the judgment of the General Court (Second Chamber) delivered on 21 April 2021 in Case T-252/19, Pech v Council

(Case C-408/21 P)

(2022/C 51/19)

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: A. de Gregorio Merino, E. Dumitriu-Segnana, K. Pavlaki, E. Rebasti, Agents)

Other parties to the proceedings: Laurent Pech, Kingdom of Sweden

Form of order sought

The Appellant claims that the Court should:

— set aside the judgment of the General Court;

— give final judgment in the matters that are the subject of this appeal, and

— order the applicant in Case T-252/19 to pay the costs of the Council arising from that case and from the present appeal.

Pleas in law and main arguments

In support of the appeal, the Council relies on three pleas in law:

First plea: misinterpretation and misapplication of the second indent of Article 4(2) of regulation 1049/2001 (1)

First limb of the plea: the General Court erred in its assessment of whether the requested opinion has a particularly wide scope and has interpreted this criterion, set by the case law, in a way that renders it inoperative. By failing to address the Council's arguments in that regard, the General Court has also breached its duty to state reasons.

Second limb of the plea: the General Court erred in law in not taking into consideration the sensitivity of the legal opinion in view of the specific circumstances of the context in which it was given, in particular its crucial character for the decision-making process. The interpretation of the sensitive nature of legal advice suggested by the General Court, which isolates the content of a legal opinion from its surrounding circumstances, is legally flawed and deprives the protection afforded under the second indent of Article 4(2) of the Regulation of a large part of its substance.

Third limb of the plea: the General Court erred in its assessment of whether disclosure of the legal opinion would adversely affect forthcoming court proceedings by compromising the equality of the parties before the judge and the Council’s right of defence.

Second plea: misinterpretation and misapplication of first subparagraph of Article 4(3) of Regulation 1049/2001

First limb of the second plea: in deciding on the applicability of the exception provided for in the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001, the General Court made an error in law by considering that the confirmatory decision needed — and failed — to adduce tangible evidence. Moreover, the General Court confined its reasoning to generic affirmations that generally negate protection instead of specifically addressing the justifications provided by the Council as to the risk for its decision-making process.

Second limb of the second plea: The General Court also committed an error in law by considering that the principle of democratic accountability that underpins the enhanced transparency of legislative documents applies to all documents relating to legislative procedures in the same way, regardless of whether they contain positions of political decision-makers or are contributions by internal services, including the Legal Service.

Third plea: breach of Article 113 of the Rules of Procedure of the General Court and misrepresentation of facts

Finally, the General Court refused to reopen the oral phase of the procedure and to take into consideration the fact that court proceedings had been introduced against regulation 2020/2092 (2) in relation to the very same legal issues discussed in the opinion. This constitutes a breach of procedure which did not allow the Council to be heard on an essential element for the case before the General Court.

(1) 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).

(2) 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 433 I, p. 1).