Case T-84/03

Maurizio Turco

v

Council of the European Union

(Openness – Public access to Council documents – Partial refusal of access – Regulation (EC) No 1049/2001 – Exceptions)

Judgment of the Court of First Instance (Fifth Chamber), 23 November 2004

Summary of the Judgment

1. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Interpretation

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

2. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of legal advice – Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

3. European Communities – 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 – Meaning – Burden of proof

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

1. The words ‘legal advice’, in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, must be understood as meaning that the protection of the public interest may preclude the disclosure of the contents of documents drawn up by the Council’s legal service in the context of court proceedings but also for any other purpose. Whilst it is true that the exceptions to access to documents fall to be interpreted and applied restrictively so as not to frustrate application of the general principle of giving the public the widest possible access to documents held by the institutions, that principle set forth in the case-law applies, however, only to the definition of the scope of an exception where that exception is capable of giving rise to several different constructions. In this case, the expression ‘legal advice’ does not, in itself, present any difficulty of interpretation, so that there is no reason for thinking that it covers only advice drawn up in the context of court proceedings. The consequence of the contrary construction suggested by the applicant would be that the inclusion of legal advice among the exceptions under Regulation No 1049/2001 had no practical effect.

(see paras 60-62)

2. The wording of the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, as well as the interpretation resulting from its comparison with the Code of Conduct concerning public access to Council and Commission documents and the institutions’ decisions concerning public access to their documents adopted prior to Regulation No 1049/2001, show that the Community legislature intended, in that regulation, to provide for an exception relating to legal advice distinct from that relating to court proceedings. Since the term ‘court proceedings’ has already been interpreted in the context of the right of public access to the institutions’ documents, the Court considers that that definition, reached for the purpose of interpreting Decision 94/90 on public access to Commission documents, is relevant for the purposes of Regulation No 1049/2001. Thus, since legal advice drawn up in the context of court proceedings is already included in the exception relating to the protection of court proceedings, the express reference to ‘legal advice’ among the exceptions necessarily has a meaning distinct from that of the exception relating to court proceedings. It follows that an applicant is not justified in claiming that a legal opinion relating to an institution’s legislative activity cannot come within the exception relating to legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001. However, the institution is bound to assess in each individual case whether the documents whose disclosure is sought actually fall within the exceptions set out in Regulation No 1049/2001.

(see paras 57-58, 64-66, 69)

3. The overriding public interest, under Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, capable of justifying the disclosure of a document which undermines the protection of legal advice must, as a rule, be distinct from the principles of openness, of democracy and of greater participation of citizens in the decision-making process, principles which are implemented by the provisions of that regulation as a whole. If that is not the case, it is, at the very least, incumbent on the applicant to show that, having regard to the specific facts of the case, the invocation of those same principles is so pressing that it overrides the need to protect the document in question. In addition, although it may be possible that the institution in question itself identifies an overriding public interest capable of justifying the disclosure of such a document, it is for the applicant who intends to rely on such an interest to invoke it in his application so as to invite the institution to give a decision on that point.

(see paras 81-84)