EN Official Journal of the European Union C 328/37

Action brought on 24 September 2010 — ClientEarth v Council

(Case T-452/10)

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2010/C 328/64

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom), (represented by: S. Hockman QC, Barrister)

Defendant: Council of the European Union

Form of order sought

— Declare the defendant in violation of Regulation (EC) No 1049/2001 (1);

— Declare the Council in violation of Article 294(6) TFEU for failure to inform the European Parliament fully of the reasons which led it to adopt its first reading position;

— Annul the contested decision of 26 July 2010 (Ref. 15/c/01/10), by which the Council provided a negative reply under Article 8(3) of Regulation (EC) No 1049/2001, thereby withholding document No 6865/09;

— Order the defendant to provide access to the requested document; and

— Order the defendant to pay applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening party.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of the Council’s decision of 26 July 2010, by which the defendant failed to provide the applicant access to document No 6865/09 which contains an opinion of the Legal Service of the defendant concerning the Commission’s proposal for the recast of Regulation (EC) No 1049/2001 and, in particular, the European Parliament’s recommended amendments contained in the Cashman report.

In support of his appeal, the applicant submits the following pleas in law:

Firstly, he contested decision violates Article 4(2) second indent of Regulation (EC) No1049/2001 and Article 294(6) TFEU. The disclosure of the requested legal advice would not undermine the protection of legal advice as it would not undermine the Council’s interest in requesting and receiving frank, objective and comprehensive legal advice. The first reading stage of the legislative procedure should imply disclosure of legal advice on admissibility of European Parliament’s proposed amendments.

Secondly, the contested decision violates article 4(3) first subparagraph of Regulation (EC) No 1049/2001. Article 4(3) is not applicable to the protection of legal advice. Even if it were, the disclosure of the requested advice would not seriously undermine the Council’s decision-making process. Disclosure would not undermine the Legal Service’s capacity to represent the Council’s position in court proceedings free from all external influence as well as the independence of the Council’s Legal Service, nor impede internal discussions of the Council on the Parliament’s amendments.

In addition, the contested decision violates Article 4(2) last indent and Article 4(3) of Regulation (EC) No 1049/2001, for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal. The Council does not balance the protection of legal advice against the public interest in the document being made accessible in the light of the advantages stemming from increased openness and of the fact that access to the requested advice would enable citizens to participate more closely in the recast process of Regulation (EC) No 1049/2001, which concerns the public at large since it provides it with the basis on which to exercise its right to have access to documents held by EU institutions.

Finally, the contested decision violates Article 4(6) of Regulation (EC) No 1049/2001 for failure to provide partial access to the requested document.

(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)