CELEX: 62012CJ0350
Language: en
Date: 2014-07-03
Title: Judgment of the Court (First Chamber), 3 July 2014.#Council of the European Union v Sophie in ’t Veld.#Appeal — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Third indent of Article 4(1)(a), second indent of Article 4(2), and Article 4(6) — Opinion of the Council’s Legal Service concerning the opening of negotiations for the conclusion of an international agreement — Exceptions to the right of access — Protection of the public interest as regards international relations — Protection of legal advice — Decision partially refusing access.#Case C‑350/12 P.

JUDGMENT OF THE COURT (First Chamber)
      3 July 2014 (*)
      
      (Appeal — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Third indent of Article 4(1)(a), second indent of Article 4(2), and Article 4(6) — Opinion of the Council’s Legal Service concerning the opening of negotiations for the conclusion of an international agreement — Exceptions to the right of access — Protection of the public interest as regards international relations — Protection of legal advice — Decision partially refusing access)
      In Case C‑350/12 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 July 2012,
      Council of the European Union, represented by P. Berman, B. Driessen and C. Fekete, acting as Agents,
      
      applicant,
      the other parties to the proceedings being:
      Sophie in ’t Veld, represented by O. Brouwer, E. Raedts and J. Blockx, advocaten,
      
      applicant at first instance,
      supported by:
      European Parliament, represented by N. Lorenz and N. Görlitz, acting as Agents,
      
      intervener in the appeal,
      European Commission, represented by B. Smulders and P. Costa de Oliveira, acting as Agents, with an address for service in Luxembourg,
      
      intervener at first instance,
      THE COURT (First Chamber),
      composed of A. Tizzano (Rapporteur), President of the Chamber, A. Borg Barthet, E. Levits, M. Berger and S. Rodin, Judges,
      Advocate General: E. Sharpston,
      Registrar: M. Aleksejev, Administrator,
      having regard to the written procedure and further to the hearing on 17 October 2013,
      after hearing the Opinion of the Advocate General at the sitting on 13 February 2014,
      gives the following
      Judgment
      1        By its appeal, the Council of the European Union seeks to have set aside the judgment of the General Court of the European
         Union in In ’t Veld v Council, T‑529/09, EU:T:2012:215 (‘the judgment under appeal’), by which the General Court annulled in part the decision of the Council
         of 29 October 2009 refusing Ms in ’t Veld full access to a document containing the opinion of the Council’s Legal Service
         concerning a recommendation from the European Commission to the Council to authorise the opening of negotiations between the
         European Union and the United States of America for the conclusion of an international agreement to make available to the
         United States Treasury Department financial messaging data (‘the decision at issue’).
      
       Legal context
      2        Recitals 2, 4 and 11 in the preamble to 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) read as follows:
         
      
      ‘(2)      Openness 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. Openness contributes
         to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty
         and in the Charter of Fundamental Rights of the European Union. 
      
      ...
      (4)      The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay
         down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.
      
      ...
      (11)      In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests
         should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and
         deliberations where necessary to safeguard their ability to carry out their tasks. In assessing the exceptions, the institutions
         should take account of the principles in Community legislation concerning the protection of personal data, in all areas of
         Union activities.’
      
      3        Article 1 of Regulation No 1049/2001 provides:
      
      ‘The purpose of this Regulation is: 
      (a)      to define the principles, conditions and limits on grounds of public or private interest governing the right of access to
         European Parliament, Council and Commission (hereinafter referred to as “the institutions”) documents provided for in Article 255
         of the EC Treaty in such a way as to ensure the widest possible access to documents, 
      
      ...’
      4        Article 2(3) of that regulation is worded as follows: 
      
      ‘This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it
         and in its possession, in all areas of activity of the European Union.’ 
      
      5        Article 4(1), (2) and (6) of that same regulation provides:
      
      ‘1.      The institutions shall refuse access to a document where disclosure would undermine the protection of:
      (a)      the public interest as regards: 
      ...
      –        international relations, 
      ...
      2.      The institutions shall refuse access to a document where disclosure would undermine the protection of: 
      ...
      –        ... legal advice,
      ...
      unless there is an overriding public interest in disclosure.
      …
      6.      If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be
         released.’
      
       Background to the dispute
      6        On 28 July 2009, Ms in ’t Veld, a Member of the European Parliament, requested access, under Regulation No 1049/2001, to document
         11897/09 of 9 July 2009, containing an opinion of the Council’s Legal Service on the ‘recommendation from the Commission to
         the Council to authorise the opening of negotiations between the European Union and the United States of America for an international
         agreement to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism
         and terrorist financing’ (‘the proposed agreement’).
      
      7        By the decision at issue, the Council authorised only partial access to the document, full access being refused on the basis
         of the exceptions laid down in the third indent of Article 4(1)(a) and the second indent of Article 4(2) of Regulation No 1049/2001,
         relating to the protection, respectively, of the public interest as regards international relations and of legal advice. 
      
      8        In that decision, the Council stated, first, that ‘disclosure of [document 11897/09] would reveal to the public information
         relating to certain provisions in the [proposed agreement] … and consequently, would negatively impact on the [European Union]’s
         negotiating position and would also damage the climate of confidence in the ongoing negotiations’. The Council added that
         ‘disclosure of the document would also reveal to the … counterpart elements pertaining to the position to be taken by the
         [European Union] in the negotiations which — in the case [where] the legal advice was critical — could be exploited so as
         to weaken the [European Union]’s negotiating position’. 
      
      9        Secondly, the Council stated that document 11897/09 contained ‘legal advice, where the Legal Service analyses the legal basis
         and the respective competences of the [European Union] and the European Community to conclude the [proposed agreement]’, and
         that this ‘sensitive issue, which has an impact on the powers of the European Parliament in the conclusion of the [proposed
         agreement], has been [the] subject of divergent positions between the institutions’. In those circumstances, according to
         the Council, ‘[d]ivulgation of the contents of [document 11897/09] would undermine the protection of legal advice, since it
         would make known to the public an internal opinion of the Legal Service, intended only for the members of the Council within
         the context of the Council’s preliminary discussions on the [proposed agreement]’. In addition, the Council considered ‘that
         the protection of its internal legal advice relating to a draft international agreement ... outweighs the public interest
         in disclosure’.
      
       The judgment under appeal and the forms of order sought
      10      On 31 December 2009, Ms in ’t Veld brought an action for annulment of the decision at issue, relying on four pleas in law
         in support of the action. 
      
      11      The first two pleas in that action alleged infringement of the third indent of Article 4(1)(a) and the second indent of Article 4(2)
         of Regulation No 1049/2001. The third plea in support of that action was based on the infringement of Article 4(6) of that
         regulation, relating to partial access to documents of the institutions. The fourth plea alleged breach of the obligation
         to state reasons.
      
      12      By the judgment under appeal, the General Court upheld, in part, the first plea of Ms in ’t Veld, and the second plea in its
         entirety. Since those first two pleas were considered well founded, the General Court also upheld the third plea. The fourth
         plea was rejected. On that basis, the General Court partially annulled the decision at issue.
      
      13      On 24 July 2012, the Council brought the present appeal, by which, supported by the Commission, it asks the Court to set aside
         the judgment under appeal, give final judgment on the matters raised in the appeal and order Ms in ’t Veld to pay the costs
         of both sets of proceedings. 
      
      14      Ms in ’t Veld, supported by the European Parliament, asks the Court of Justice to dismiss the appeal and to order the Council
         to pay the costs. 
      
       The appeal
      15      By its appeal, the Council claims that the General Court infringed two provisions of Regulation No 1049/2001 restricting the
         right of access to documents of the institutions. The first plea is thus based on an infringement of the third indent of Article 4(1)(a)
         of Regulation No 1049/2001, relating to the protection of the public interest as regards international relations, and the
         second alleges infringement of the second indent of Article 4(2) of the regulation, which provides for an exception in respect
         of legal advice. 
      
       The first plea, alleging infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001
       The judgment under appeal
      16      In order to respond to the first plea in law put forward by Ms in ’t Veld in support of her action for annulment, alleging
         infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001, the General Court noted, in paragraphs 24
         and 25 of the judgment under appeal, that the decision to be adopted by an institution pursuant to that provision is of a
         complex and delicate nature and calls for the exercise of particular care, having regard in particular to the singularly sensitive
         and essential nature of the protected interest, and that, therefore, the adoption of such a decision calls for the institution
         concerned to have a wide margin of discretion for that purpose; the General Court’s review of the legality of that decision
         must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the
         facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers.
      
      17      In paragraph 26 of the judgment under appeal, the General Court found that the opinion to which access had been requested
         in the present case was, in essence, concerned with the legal basis of the Council decision authorising the opening of negotiations,
         on behalf of the European Union, for the conclusion of the proposed agreement. The General Court therefore considered, in
         paragraph 30 of the judgment under appeal, that it had to be ascertained whether the Council had shown that access to the
         undisclosed elements of document 11897/09 could have specifically and actually undermined the public interest concerned.
      
      18      To that end, the General Court examined the two grounds on which the Council relied in order to establish that there was a
         risk of such a threat. As regards the ground that disclosure would have revealed to the public information relating to certain
         provisions in the proposed agreement, which would have damaged the climate of confidence in the ongoing negotiations, the
         General Court held, in paragraphs 35 to 39 of the judgment under appeal, that the Council had, on the basis of that ground,
         lawfully refused access to those passages in document 11897/09 containing the analysis of the specific content of that agreement
         which could have revealed the strategic objectives pursued by the European Union in the negotiations on the conclusion of
         that agreement. 
      
      19      As regards the ground that disclosure of document 11897/09 would have revealed to the counterpart elements pertaining to the
         position to be taken by the European Union in the negotiations (in particular as regards the choice of legal basis for the
         proposed agreement), elements which, where the legal advice had been critical, could have been exploited so as to weaken the
         European Union’s negotiating position, the General Court noted in paragraph 46 of the judgment under appeal that the risk
         involved in the disclosure of positions taken within the institutions regarding the legal basis for concluding a future international
         agreement was not liable in itself to establish the existence of a threat to the European Union’s interest in the field of
         international relations.
      
      20      In that regard, in paragraphs 47 to 50 of the judgment under appeal, the General Court noted, first of all, that the choice
         of the appropriate legal basis, both for internal and international European Union activity, has constitutional significance
         and that such a choice does not follow merely from the conviction of its author, but must rest on objective factors which
         are amenable to judicial review, such as, in particular, the aim and the content of the measure. As a consequence, since that
         choice does not fall within the discretion of the institution, any divergence of opinions on that subject cannot be equated
         with a difference of opinion between the institutions as to matters which relate to the substance of the agreement. Accordingly,
         the mere fear of disclosing a disagreement within the institutions regarding the legal basis of a decision authorising the
         opening of negotiations on behalf of the European Union is not a sufficient basis for concluding that the protected public
         interest in the field of international relations may be undermined.
      
      21      Furthermore, in response to the argument put forward by the Commission in that respect, the General Court, in paragraphs 52
         and 53 of the judgment under appeal, held that the disclosure of a document establishing the existence of doubts regarding
         the choice of the legal basis in relation to the conclusion of the proposed agreement was not liable to give rise, in itself,
         to a threat to the European Union’s credibility as a negotiating partner in respect of that agreement. Indeed, any confusion
         as to the nature of the powers of the European Union could only be made worse in the absence of a prior objective debate between
         the institutions concerned regarding the legal basis of the action envisaged.
      
      22      Next, in paragraph 54 of the judgment under appeal, the General Court noted that, at the material time, there was a procedure
         under EU law, in Article 300(6) EC, that was specifically designed to prevent complications, both at EU level and in international
         law, resulting from an incorrect choice of legal basis in relation to the conclusion of an international agreement binding
         the European Union. 
      
      23      In that regard, the General Court, in paragraphs 55 and 56 of the judgment under appeal, underlined the fact that, at the
         time of the adoption of the decision at issue, the existence of different views concerning the legal basis of the proposed
         agreement was within the public domain, owing, inter alia, to the fact that a Parliament resolution of 17 September 2009 relating
         to the proposed agreement established the existence of such different views.
      
      24      Lastly, in paragraph 57 of the judgment under appeal, the General Court noted that, in invoking the exception based on the
         protection of the public interest as regards international relations, the Council also made reference to the fact that the
         opinion of its Legal Service touched on certain points of the draft negotiating directives, knowledge of which could have
         been exploited by the other party to those negotiations. The General Court held that that consideration did indeed establish
         a risk that the European Union’s interest in the field of international relations might be undermined, but that it justified
         the exception in question only with respect to those elements of document 11897/09 that related to the content of the negotiating
         directives.
      
      25      In paragraphs 58 to 60 of the judgment under appeal, the General Court concluded from the foregoing considerations that, with
         the exception of those elements of document 11897/09 concerning the specific content of the proposed agreement or the negotiating
         directives which could reveal the strategic objectives pursued by the European Union in the negotiations on that agreement,
         the Council had not shown that the disclosure of other aspects of that document would specifically and actually have undermined
         the public interest in the field of international relations. 
      
      26      Consequently, the General Court upheld in part the first plea in law put forward by Ms in ’t Veld in support of her action
         for annulment. 
      
       Arguments of the parties
      27      The first ground of appeal raised by the Council alleges infringement, by the judgment under appeal, of the third indent of
         Article 4(1)(a) of Regulation No 1049/2001, and is in two parts. 
      
      28      By the first part of this plea, the Council, supported by the Commission, submits that the General Court misinterpreted that
         provision by considering that a disagreement as to the choice of the legal basis of the EU act regarding the conclusion of
         an international agreement is not capable of undermining the European Union’s interest in the field of international relations.
      
      29      According to the Council, since the legal basis of an EU act determines the decision-making procedure that applies, it necessarily
         affects the balance of powers between the institutions as well. Disputes concerning the applicable legal basis therefore remain,
         by their very nature, of very great political significance and are potentially highly contentious. 
      
      30      Referring to Commission v Council, 22/70 (EU:C:1971:32) and to Opinion 1/75 (EU:C:1975:145) and Opinion 2/00 (EU:C:2001:664), the Council maintains that the
         issue of the legal basis of an EU act concerning the conclusion of an international agreement is vitally important for the
         European Union’s position in the negotiations on such an agreement, since uncertainty as to the determination of the legal
         basis of such an agreement has a negative impact on those negotiations. 
      
      31      The European Union’s negotiating partners could exploit the differences of opinion between the institutions to the European
         Union’s disadvantage. Moreover, any doubts as to the legal capacity of an institution to conduct negotiations would also have
         an impact on the European Union’s credibility and effectiveness in international negotiations, and would adversely affect
         its ability to bring them to a successful conclusion.
      
      32      As regards the reference to Article 300(6) EC, in the Council’s submission this is wholly irrelevant. First, no institution
         had availed itself of this possibility in the present case. Secondly, the availability of that procedure does not in any way
         mitigate the harm caused by disclosing legal advice relating to a dispute about a legal basis. 
      
      33      In addition, the Parliament resolution of 17 September 2009 referred to by the General Court, which was adopted a few months
         after document 11897/09 was drawn up, had revealed the substance of divergent opinions unlawfully, since that information
         had never been disclosed by the Council under Regulation No 1049/2001. In those circumstances, the General Court was wrong
         to justify its decision on the basis, in particular, that the information had been made public by the European Parliament;
         to conclude otherwise would condone the disclosure of information in contravention of Articles 6 to 8 of that regulation.
         In any event, that resolution merely noted the existence of a difference of views between the institutions, which did not
         imply that the full content of the opinion in question had been put in the public domain. 
      
      34      By contrast, Ms in ’t Veld, supported by the European Parliament, submits that the Council’s arguments are based on a misreading
         of the judgment under appeal, in so far as the General Court did not consider that disagreement as to the legal basis of an
         international agreement could never undermine the public interest in the field of international relations. In fact the General
         Court merely stated that such a disagreement is not, in itself, a sufficient basis for concluding that there is a threat to
         that interest.
      
      35      That error in the premiss of the Council’s reasoning rendered its arguments in support of the first part of the first plea
         ineffective. 
      
      36      In any event, according to Ms in ’t Veld, those arguments are unfounded. Whilst the decision of an institution to proceed
         on an incorrect basis could actually undermine the European Union’s international relations, the fact remains that the disclosure
         of an opinion of that institution as to the legal basis of negotiations does not affect this.
      
      37      Ms in ’t Veld adds that the choice of legal basis is a purely internal issue, so that it is doubtful that the European Union’s
         negotiating partners could use uncertainties as to its choice in order to obtain a better deal. On the contrary, the negotiating
         partners of the European Union in principle have an interest in ensuring that the proposed international agreement is concluded
         on a lawful basis, so as to reduce to a minimum the risk of any future challenge to that agreement, including on the grounds
         of lack of competence of the institutions to represent the parties to it. Likewise, the European Union’s credibility in negotiations
         can be undermined only by the choice of a wrong legal basis and not by the debate on that choice.
      
      38      Lastly, as regards the Parliament resolution of 17 September 2009, the General Court had referred to it only in so far as
         it confirmed not the content but the existence of differences of opinion between the Council and the European Parliament on
         the choice of an adequate legal basis for the purpose of conducting such negotiations, which was public knowledge and which
         also appeared in the decision at issue itself.
      
      39      By the second part of its first ground of appeal, the Council, supported by the Commission, submits that where the institutions
         rely on one of the exceptions laid down in Article 4(1) of Regulation No 1049/2001 in order to justify a decision relating
         to access to a document, they have a wide margin of discretion; therefore the Court’s review of the legality of such a decision
         should be limited. 
      
      40      However, in the present case, the General Court had undertaken a full review of the decision at issue. In particular, in paragraph 58
         of the judgment under appeal, it had explicitly concluded that ‘the Council has not shown how, specifically and actually,
         wider access to [document 11897/09] would have undermined the public interest in the field of international relations’. According
         to the Council, that phrase, and in particular the words ‘specifically and actually’, demonstrate that the General Court did
         not just check whether the facts had been accurately stated and whether there had been a manifest error of assessment of the
         facts, but rather required the Council to prove that the disclosure of that document would lead to harm.
      
      41      Ms in ’t Veld, supported by the European Parliament, contends, in opposition to that argument, that it is the case-law of
         the Court of Justice that requires the institution concerned to provide proof that the disclosure of a document to which access
         has been refused would specifically and actually undermine one of the interests protected by Article 4 of Regulation No 1049/2001.
         The General Court had confined itself to examining the two arguments raised by the Council and by the Commission to justify
         the non-disclosure of document 11897/09 without infringing the Council’s discretion, given that the arguments of those institutions
         referred to manifest errors of assessment which the General Court is empowered to review in the context of a limited review.
         The General Court had not, therefore, assessed the specific content of the proposed agreement or the negotiating directives,
         and therefore did not replace the Council’s assessment with its own.
      
       Findings of the Court
      42      As regards the first part of the first plea put forward by the Council in support of its appeal, it must be held that that
         part of the plea is based on a misreading of the judgment under appeal.
      
      43      Contrary to what may be inferred from the Council’s and the Commission’s reasoning, the General Court did not in any way rule
         out the possibility that the disclosure of a disagreement between institutions as to the choice of legal basis empowering
         an institution to conclude an international agreement on behalf of the European Union might undermine the protection of the
         interest protected by the third indent of Article 4(1)(a) of Regulation No 1049/2001.
      
      44      On the contrary, the General Court merely stated, in paragraph 46 of the judgment under appeal, first of all, that the risk
         involved in disclosing positions taken within the institutions with regard to that choice does not in itself establish the
         existence of a threat to the European Union’s interest in the field of international relations. It went on to point out, in
         paragraph 50 of that judgment, that the mere fear of disclosure of the existence of divergent opinions within the institutions
         regarding the appropriate legal basis on which to adopt a decision authorising the opening of negotiations on behalf of the
         European Union is not a sufficient basis for concluding that the public interest in the field of international relations may
         be undermined. Lastly, in paragraph 52 of that judgment, it ruled out the possibility that the existence of a legal debate
         as to the extent of the powers of the institutions with regard to the international activity of the European Union might give
         rise to a presumption of the existence of a threat to the credibility of the European Union in the negotiations for an international
         agreement. 
      
      45      Such an interpretation of the third indent of Article 4(1)(a) of Regulation No 1049/2001 is not incorrect in law. 
      
      46      It must be noted in that regard that Regulation No 1049/2001 is designed — as is stated in recital 4 and reflected in Article 1 —
         to confer on the public as wide a right of access as possible to documents of the institutions (Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 28 and the case-law cited).
      
      47      However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically,
         and in reflection of recital 11, Article 4 of Regulation No 1049/2001 provides for a number of exceptions enabling the institutions
         to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that
         provision (Council v Access Info Europe, EU:C:2013:671, paragraph 29 and the case-law cited).
      
      48      Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must
         be interpreted and applied strictly (Council v Access Info Europe, EU:C:2013:671, paragraph 30 and the case-law cited).
      
      49      As is apparent from the judgment under appeal, document 11897/09 contains an opinion of the Council’s Legal Service, issued
         in the context of the adoption of the Council’s decision authorising the opening of negotiations, on behalf of the European
         Union, in respect of the proposed agreement.
      
      50      Ms in ’t Veld does not dispute, moreover, that the exception to the right of access linked to the protection of the public
         interest as regards the European Union’s international relations is capable of applying to such a document.
      
      51      However, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in
         Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see, to that effect,
         Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116).
      
      52      Indeed, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must,
         in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected
         by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying. In addition,
         the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Council v Access Info Europe, EU:C:2013:671, paragraph 31 and the case-law cited).
      
      53      Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) 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 of increased
         openness, as described in recital 2 to Regulation No 1049/2001, 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 (Council v Access Info Europe, EU:C:2013:671, paragraph 32 and the case-law cited).
      
      54      However, as is evident from paragraph 7 of the judgment under appeal, the Council did not provide anything in the decision
         at issue to demonstrate how disclosure of document 11897/09 would risk specifically and actually undermining the interest
         protected by the third indent of Article 4(1)(a) of Regulation No 1049/2001.
      
      55      Furthermore, the arguments put forward by the Council do not establish that the General Court’s reasoning in relation to the
         interpretation of that provision is incorrect in law. 
      
      56      In the first place, the case-law invoked by the Council does not reveal any general rule under which disclosure of the existence
         of a divergence of views among the institutions as to the legal basis on which one of them is empowered to open negotiations
         to conclude an international agreement and, therefore, the determination of the appropriate EU act for that purpose, would
         in itself undermine the public interest as regards the European Union’s international relations.
      
      57      First of all, in Commission v Council (EU:C:1971:32, paragraph 86), the Court held that to have suggested to third countries, at an advanced stage of the negotiations
         in respect of an international agreement, that there was now a new distribution of powers within the European Union could
         jeopardise the successful outcome of those negotiations. That does not correspond at all to the situation in which there is
         disclosure, at most, of a divergence of opinion between institutions as to the legal basis of a decision authorising the negotiation
         of an international agreement. Nor does it mean that the decision in question could, on that basis, be invalidated. 
      
      58      Next, in Opinion 1/75 (EU:C:1975:145), the Court referred to the negative international repercussions that might flow from
         a possible decision of the Court to the effect that an agreement is, either by reason of its content or of the procedure adopted
         for its conclusion, incompatible with the provisions of the Treaty. Lastly, in Opinion 2/00 (EU:C:2001:664, paragraphs 5 and
         6), the Court emphasised that to proceed on an incorrect legal basis is liable to invalidate the act concluding the agreement,
         and that that is liable to create complications both at EU level and in international law. The Court’s considerations in the
         context of those Opinions are set in the context of an examination of the objective of the procedure laid down in Article 300(6)
         EC (now Article 218(11) TFEU). In the present case, not only did the parties not avail themselves of that procedure for prior
         referral to the Court of Justice before the conclusion of the proposed agreement, but in any case the risk that the Council’s
         decision on the opening of negotiations might be the subject of a judicial decision declaring it to be incompatible with the
         Treaties was not contemplated.
      
      59      In the second place, the General Court’s reference in paragraph 54 of the judgment under appeal to the procedure laid down
         under Article 300(6) EC is merely descriptive. Such a reference must clearly be understood as an indication that it is the
         Treaty itself which lays down a judicial procedure concerning the legal issues that may be linked to the legal basis of a
         decision concerning the conclusion of an international agreement, a procedure which precedes the signing of the agreement
         and which is public, thereby ruling out any presumption that a discussion that is made public, concerning the correct legal
         basis for such a decision, can automatically specifically and actually undermine the public interest as regards international
         relations.
      
      60      Lastly, in third place, in its assessment of the existence of a risk of a threat to that interest, the General Court was fully
         entitled, in paragraph 55 of the judgment under appeal, to take into consideration the fact that the main content of document
         11897/09 had been made public in a Parliament resolution. In the context of that assessment, which concerns the risk that
         disclosure of a document would lead to harm to the interest protected under Article 4 of Regulation No 1049/2001, the fact
         that the earlier disclosure was not in accordance with that regulation is not relevant; the inferences to be drawn from such
         unlawfulness may have to be drawn in the context of other legal remedies provided for by the Treaties. 
      
      61      Having regard to the foregoing, it must be concluded that the first part of the first plea put forward by the Council in support
         of its appeal is unfounded. 
      
      62      By the second part of that plea, the Council submits that the General Court wrongly carried out a full review of the legality
         of the decision at issue, when it should have confined itself to a limited review, as is clear from the case-law of the Court
         of Justice.
      
      63      It must be noted in that regard that while it is true that, as regards the scope of the judicial review of the legality of
         a decision of an institution refusing public access to a document on the basis of one of the exceptions relating to the public
         interest provided for in Article 4(1)(a) of Regulation No 1049/2001, that institution must be recognised as enjoying a wide
         discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by those exceptions
         could undermine the public interest. The review by the Courts of the European Union of the legality of such a decision must
         therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether
         the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 34).
      
      64      However, where the institution concerned refuses access to a document the disclosure of which would undermine one of the interests
         protected by Article 4(1)(a) of Regulation No 1049/2001, that institution remains obliged, as noted in paragraph 52 of the
         present judgment, to explain how disclosure of that document could specifically and actually undermine the interest protected
         by an exception provided for in that provision, and the risk of the interest being undermined must be reasonably foreseeable
         and must not be purely hypothetical. 
      
      65      In paragraph 58 of the judgment under appeal, the General Court found that, with the exception of those elements of document
         11897/09 which concern the specific content of the proposed agreement or the negotiating directives, which could reveal the
         strategic objectives pursued by the European Union in the negotiations concerning that agreement, the Council had not shown
         how, specifically and actually, wider access to that document would have undermined the public interest in the field of international
         relations.
      
      66      To that end, the General Court confined itself to verifying the statement of reasons for the decision at issue in that regard.
         After having pointed out, in paragraph 41 of the judgment under appeal, that the Council was maintaining that that decision
         referred to the risk associated with the disclosure of those elements of the analysis relating to the legal basis of the proposed
         agreement, even if that was not explicitly apparent from that decision, the General Court, on the basis of that consideration,
         then confined itself to declaring, in paragraphs 46 to 50 of that judgment, that that statement of reasons for the decision
         at issue was insufficient in law, since merely noting the existence of that risk did not in itself satisfy the requirement
         whereby the institution concerned must establish, specifically and actually, the existence of a threat to the European Union’s
         interest in the field of international relations. The General Court ruled in that regard that, since the choice of the legal
         basis rests on objective factors and does not fall within the discretion of the institution, any divergence of opinion on
         that subject cannot be equated with a difference of opinion between the institutions as to matters which relate to the substance
         of the agreement, and which might have been liable to damage the interests of the European Union in the field of international
         relations.
      
      67      By contrast, in paragraphs 57 and 58 of the judgment under appeal, the General Court considered that the statement of reasons
         put forward by the Council in support of the decision at issue was sufficient in itself as regards the elements of document
         11897/09 concerning the specific content of the proposed agreement or the negotiating directives, and concluded in paragraph 59
         of that judgment that the Council had established the risk of a threat to the public interest in the field of international
         relations with regard to those elements only.
      
      68      It follows from the foregoing that the General Court confined itself to reviewing the statement of reasons underpinning the
         decision at issue and did not, therefore, infringe the Council’s discretion.
      
      69      In the light of those considerations, the second part of the first plea put forward by the Council in support of its appeal
         is also unfounded; accordingly this plea must be rejected in its entirety.
      
       The second plea, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001
       The judgment under appeal
      70      In the light of its finding following examination of the first plea in law put forward by Ms in ’t Veld in support of her
         action for annulment, the General Court limited its examination of the second plea, alleging infringement of the second indent
         of Article 4(2) of Regulation No 1049/2001, to the undisclosed parts of document 11897/09 only, and excluded those dealing
         with the specific content of the proposed agreement or the negotiating directives.
      
      71      In paragraphs 69 and 70 of the judgment under appeal, first of all, the General Court held that the grounds of the decision
         at issue, according to which the Council and its Legal Service could be deterred from asking for and providing written opinions
         relating to sensitive issues if those opinions subsequently had to be disclosed, were not substantiated by any specific, detailed
         evidence which could establish in the present case the existence of a reasonably foreseeable and not purely hypothetical threat
         to the Council’s interest in receiving frank, objective and comprehensive legal advice.
      
      72      In paragraph 71 of the judgment under appeal, the General Court also held that, since the possibility that the public interest
         in the field of international relations could be undermined was provided for by a separate exception, covered by the third
         indent of Article 4(1)(a) of Regulation No 1049/2001, the mere fact that the legal advice contained in document 11897/09 concerned
         the field of the international relations of the European Union was not in itself sufficient for the application of the exception
         laid down in the second indent of Article 4(2) of that regulation.
      
      73      In paragraphs 72 to 74 of the judgment under appeal, the General Court went on to note that, although it may be conceded that
         where international negotiations are still ongoing, enhanced protection is necessary in respect of the documents of the institution
         involved in those negotiations, in order to rule out any threat to the interests of the European Union during the process
         of those negotiations, that consideration has already been taken into account by the recognition of the wide discretion given
         to the institutions in applying the exception under the third indent of Article 4(1)(a) of Regulation No 1049/2001. In the
         context of the exception provided for in the second indent of Article 4(2) of that regulation, the Council cannot legitimately
         rely on the general consideration that a threat to a protected public interest may be presumed in a sensitive area, in particular
         concerning legal advice given during the negotiation process for an international agreement. Nor may a specific and foreseeable
         threat to the interest in question be established by a mere fear of disclosing to EU citizens differences of opinion between
         the institutions regarding the legal basis for the international activity of the European Union and, thus, of creating doubts
         as to the lawfulness of that activity.
      
      74      Regarding the Council’s argument concerning the risk of a threat to the ability of its Legal Service to defend, in court proceedings,
         a position on which it had issued a negative opinion, the General Court considered, in paragraph 78 of the judgment under
         appeal, that an argument of such a general nature could not justify an exception to the transparency required by Regulation
         No 1049/2001.
      
      75      Lastly, according to the General Court, it was for the Council to balance the particular interest to be protected by non-disclosure
         of document 11897/09 against any overriding public interest justifying disclosure.
      
      76      In that regard, the General Court, in paragraphs 81 to 95 of the judgment under appeal, noted that the requirements for transparency
         are greater where the Council is acting in its legislative capacity. Yet, initiating and conducting negotiations in order
         to conclude an international agreement fall, in principle, within the domain of the executive. However, the General Court
         also added that application of the principle of the transparency of the decision-making process of the European Union could
         not be ruled out in international affairs, especially where a decision authorising the opening of negotiations involves an
         international agreement which may have an impact on an area of the European Union’s legislative activity, such as the proposed
         agreement which concerns, in essence, the processing and exchange of information in the context of police cooperation, which
         may also affect the protection of personal data. In that regard, the fact that document 11897/09 concerns an area potentially
         covered by the exception referred to in the third indent of Article 4(1)(a) of Regulation No 1049/2001, relating to the protection
         of the public interest in the field of international relations, is irrelevant for the purposes of an assessment of the application
         of the separate exception, relating to the protection of legal advice, provided for in the second indent of Article 4(2) of
         that regulation. Moreover, the fact that the procedure for concluding the proposed agreement was still ongoing at the time
         of the adoption of the decision at issue is not conclusive in ascertaining whether, despite that risk, there exists any overriding
         public interest justifying disclosure. Indeed, the public interest in the transparency of the decision-making process would
         become meaningless if, as the Commission proposes, it were to be taken into account only in those cases where the decision-making
         process has come to an end.
      
      77      On the basis of those considerations, the General Court upheld the second plea in law put forward by Ms in ’t Veld in support
         of her action for annulment. 
      
       Arguments of the parties
      78      The second ground of appeal raised by the Council alleges infringement of the second indent of Article 4(2) of Regulation
         No 1049/2001, and is in two parts. 
      
      79      By the first part of this plea, the Council, supported by the Commission, claims that the General Court failed to consider
         the specific nature of the subject-matter dealt with in the legal opinion contained in document 11897/09 and erroneously applied
         the ‘specific and actual harm’ standard.
      
      80      In particular, the General Court had overlooked the specific circumstances of the present case, in particular the fact that
         the international negotiations on a sensitive matter relating to cooperation in the fight against terrorism were ongoing at
         the material time, and that the institutions were in disagreement regarding the choice of the legal basis of the proposed
         agreement. The fact that the General Court failed to take into consideration, for the purposes of the exception in the second
         indent of Article 4(2) of Regulation No 1049/2001, the subject-matter dealt with in the legal opinion was inconsistent with
         the case-law of the Court of Justice, according to which the area of activity to which a document relates and its sensitive
         nature are relevant for the purposes of applying the relative exceptions provided for in Article 4(2) and (3) of that regulation.
      
      81      According to the Council, the General Court’s insistence, in paragraph 73 of the judgment under appeal, on the fact that the
         interests related to the negotiation of the international agreement had already been taken into account ‘by the recognition
         of the wide discretion given to the institutions in applying the exception under the third indent of Article 4(1)(a) of Regulation
         No 1049/2001’ is based on the false premiss that an institution cannot rely on the same factual elements in order to justify
         the application of different exceptions under Article 4 of that regulation, since that premiss is supported neither by the
         wording of the regulation itself nor by the relevant case-law, the Council citing in support of its view Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 55, and Commission v Éditions Odile Jacob EU:C:2012:393, paragraphs 113 to 115.
      
      82      The Council adds in that regard that the General Court committed an error of law by requiring it to establish the existence
         of specific and actual harm to the protection of legal advice and to submit specific, detailed evidence proving the existence
         of that harm.
      
      83      In any event, the Council had explained, in the decision at issue, how, in the present case, public access to document 11897/09
         was likely to undermine the interest protected by the exception in the second indent of Article 4(2) of Regulation No 1049/2001.
         In particular, there was a real risk that the European Parliament might seek to use elements in the legal opinion in the political
         exchanges between the institutions in order to influence the pending negotiations. Moreover, the negotiations had still been
         pending at the material time, while the Court of Justice had never ruled in favour of disclosure of a legal opinion in such
         circumstances.
      
      84      Lastly, the Council submits that the General Court’s view, in paragraph 101 of the judgment under appeal, that ‘the public
         interest in the transparency of the decision-making process would become meaningless if, as the Commission proposes, it were
         to be taken into account only in those cases where the decision-making process has come to an end’, is inconsistent with the
         case-law of the Court of Justice, which admits that internal documents including legal opinions benefit from a higher level
         of protection while the relevant procedure is pending. It is also contrary to the wording of the second subparagraph of Article 4(3)
         of Regulation No 1049/2001, which provides for a specific exception regarding the protection of internal documents relating
         to a matter where the decision has not been taken by the institution.
      
      85      According to Ms in ’t Veld, supported by the European Parliament, the General Court in fact confined itself to considering
         whether the fact that the legal advice related to the European Union’s international relations should have changed its analysis,
         and concluded in paragraph 71 of the judgment under appeal that this circumstance was not ‘in itself’ sufficient to justify
         a refusal based on the protection of legal advice.
      
      86      In addition, the General Court’s statement in paragraph 88 of the judgment under appeal that ‘public participation in the
         procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted, in view
         of the legitimate interest in not revealing strategic elements of the negotiations’ did not mean that legal advice in relation
         to the legal basis of those negotiations is ‘particularly sensitive’. In fact, the judgment under appeal already allowed the
         Council to redact information from the opinion containing ‘strategic elements of the negotiations’ because it allowed the
         Council to redact ‘those passages in the requested document containing the analysis of the specific content of the [proposed]
         agreement which could have revealed the strategic objectives pursued by the European Union in the negotiations’. The part
         of the judgment which concerns the exception relating to legal advice therefore discussed only the remainder of document 11897/09.
         The Council’s arguments are therefore unfounded. 
      
      87      As to the General Court’s alleged error in the application of the ‘specific and actual harm’ standard, Ms in ’t Veld refers
         back to her arguments in that regard which were set out in the second part of the first plea.
      
      88      Lastly, with regard to the alleged existence of exceptional circumstances in the present case, Ms in ’t Veld maintains, in
         response to the Council’s arguments, that, first, as regards the fact that disclosure should be refused on the ground that
         the legal advice related to an internal discussion in the Council on the commencement of the negotiations, that is not relevant,
         since all legal advice constitutes internal discussions on the topic on which they are prepared. Secondly, as regards the
         fact that the advice relates to the ‘sensitive matter’ of terrorism and terrorist-financing, the Council had not explained
         why this would be relevant for the purposes of justifying the restriction of access to an opinion concerning the legal basis
         for concluding an international agreement such as the proposed agreement. To the extent that the opinion describes the content
         of that agreement and the strategic objectives of the European Union, the General Court had decided that the Council was not
         obliged to disclose them. As to the other parts of the opinion — that is those concerning the legal basis on which to conclude
         the proposed agreement — their possibly sensitive nature would not depend on the subject-matter of the agreement itself. Thirdly,
         as regards the fact that the negotiations on that agreement were still ongoing, the General Court had rightly explained that
         if citizens were precluded from gaining access to internal documents of the institutions on the ground that the decision-making
         process had not been concluded, they would never be able to participate in that process. Furthermore, the Council’s reference
         in that context to Article 4(3) of Regulation No 1049/2001 was irrelevant, since that exception had not been invoked in the
         decision at issue. Fourthly, in the light of the argument that disclosure of the document would increase the chances that
         the European Parliament ‘might seek to use elements in the legal opinion in the political exchanges between the institutions
         in order to influence the pending negotiations’, Ms in ’t Veld notes that, as a Member of that Parliament, she had already
         been able to take cognisance of the content of document 11897/09 even before the decision at issue was adopted, and therefore,
         if she had wanted to use those elements in the negotiations with the Council, she could already have done so. 
      
      89      By the second part of its second plea, the Council, supported by the Commission, claims that the General Court made an error
         of law in applying, in the context of the present case, case-law of the Court of Justice according to which it is necessary,
         in the balancing exercise required by the last phrase of Article 4(2) of Regulation No 1049/2001, to take account of the fact
         that a legal opinion has been issued in the context of a legislative procedure (Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374). The General Court’s reasoning was based on the premiss that the same level of transparency
         should apply to the European Union’s decision-making process during the negotiation of an international agreement affecting
         the European Union’s legislative activity as applies to the legislative process of the European Union itself, which would
         amount to an unwarranted extension of the judgment in Sweden and Turco v Council (EU:C:2008:374) beyond the legislative sphere. 
      
      90      In fact, there is an important distinction between cases where the European Union is acting in its legislative capacity and
         those where it is acting in its executive capacity in conducting international relations. Regulation No 1049/2001 itself recognised
         the special protection to be accorded to international relations, the confidentiality of which is protected by an exception
         set out in the third indent of Article 4(1)(a), a provision in respect of which the legislator had not, however, foreseen
         a balancing of the competing interests. 
      
      91      Although issues of democratic accountability and EU citizens’ participation do arise in relation to the conclusion of an international
         agreement and its subsequent implementation by means of EU legislative acts, the Council maintains that that cannot be the
         case during the preceding negotiation phase, in so far as it is impossible to inform EU citizens at large without simultaneously
         informing the international partners with whom the European Union is negotiating.
      
      92      Against that argument, Ms in ’t Veld notes that the General Court allowed the Council to redact the passages in document 11897/09
         discussing the specific content of the proposed agreement which could have revealed the strategic objectives of the European
         Union; therefore those arguments could not be relevant for the discussion of the legal basis of the agreement, as no ‘strategic
         elements’ derived from that. 
      
      93      In addition, the fact that the legal advice related to international relations and that Article 4(1) of Regulation No 1049/2001
         contains a special ‘mandatory’ exception protecting the European Union’s international relations does not remove the need
         to take into account the possibility of an overriding public interest in the context of Article 4(2) of that regulation. It
         is precisely because of the impact of the proposed agreement on the legislative activity of the European Union — that is the
         impact it has on rules that are binding on all EU citizens — that the need to confer greater legitimacy on the institutions
         and the increased confidence of citizens in them constitute an overriding interest.
      
      94      Lastly, as regards the point raised by the Council that, in the context of ongoing negotiations, it is impossible to inform
         citizens at large without simultaneously informing the international partners with whom the European Union is negotiating,
         Ms in ’t Veld states that, while that may be a relevant consideration for the refusal of public access to that part of document
         11897/09 concerning the strategic objectives and negotiating tactics, that would not be the case as regards the remainder
         of that document, which concerns only the question of the legal basis. 
      
       Findings of the Court
      95      As a preliminary point, it should be borne in mind that, according to the case-law of the Court, 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 (Sweden and Turco v Council, EU:C:2008:374, paragraph 37).
      
      96      Accordingly, the Council must first satisfy itself that the document which it is asked to disclose does indeed relate to legal
         advice. Secondly, it must examine whether disclosure of the parts of the document in question which have been identified as
         relating to legal advice would undermine the protection which 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
         risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not
         purely hypothetical. Thirdly 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 thereby be undermined (see, to that effect, Sweden and Turco v Council, EU:C:2008:374, paragraphs 38 to 44).
      
      97      By the first part of its second ground of appeal, the Council, in the first place, claims that the General Court failed to
         take account, when assessing the risk that the disclosure of document 11897/09 would undermine the interest protected by the
         second indent of Article 4(2) of Regulation No 1049/2001, of the fact that the content of that document was particularly sensitive,
         since it concerned ongoing international negotiations on a matter relating to cooperation in the fight against terrorism.
      
      98      It is sufficient to note in that regard that the General Court did in fact take that point into consideration in paragraph 71
         of the judgment under appeal, but ruled that that fact, in itself, was not sufficient for the application of the relevant
         exception to the right of access, since the possibility that the public interest in the field of international relations could
         be undermined is provided for by a separate exception.
      
      99      That interpretation is not wrong in law. 
      
      100    First, it is true that an EU institution, when assessing a request for access to documents which it holds, may take into account
         more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (see, to that effect, Commission v Éditions Odile Jacob EU:C:2012:393, paragraph 113, and Commission v Agrofert Holding EU:C:2012:394, paragraph 55).
      
      101    However, by its arguments, the Council is really seeking to justify the application of a single ground for refusal — the protection
         of the public interest as regards international relations — by invoking to that end two different exceptions set out in Article 4
         of Regulation No 1049/2001. Yet even on the assumption that identical facts could justify the application of two different
         exceptions, where — as in the present case — an applicant has unsuccessfully relied on the exception expressly laid down for
         the protection of international relations, that applicant cannot then be justified in referring to the same facts in order
         to establish a presumption that an exception protecting another interest — such as legal advice — should apply, without explaining
         how the disclosure of those documents could specifically and actually undermine that other interest. 
      
      102    Secondly, the General Court itself acknowledged in paragraph 88 of the judgment under appeal that public participation in
         the procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted, in view
         of the legitimate interest in not revealing strategic elements of the negotiations. In that regard, the Council’s complaint
         that the General Court failed to draw the appropriate conclusions from that consideration has no basis in fact, since it is
         precisely on the basis of that consideration that the General Court, in paragraphs 35 to 39 of the judgment under appeal,
         considered that access to that part of document 11897/09 which contained the strategic elements of the negotiations could
         legitimately be refused on the basis of the exception set out in the third indent of Article 4(1)(a) of Regulation No 1049/2001.
      
      103    In the second place, the Council claims that the General Court erroneously applied the ‘specific and actual harm’ standard.
      
      104    In that regard, it is sufficient to note that, in the light of the case-law mentioned in paragraph 52 of the present judgment,
         the General Court correctly observed in paragraph 69 of the judgment under appeal that the risk that the disclosure of document
         11897/09 could specifically and actually undermine an institution’s interest in seeking and receiving frank, objective and
         comprehensive advice must be reasonably foreseeable and not purely hypothetical.
      
      105    In order to provide the necessary explanations to establish the existence of such a risk, it is necessary, contrary to the
         Council’s and Commission’s assertions, to carry out the examination described in paragraph 96 of the present judgment, even
         if the document to which access is sought does not concern a legislative procedure. 
      
      106    Admittedly the Court emphasised, in paragraph 46 of the judgment in Sweden and Turco v Council (EU:C:2008:374), that the considerations, whereby it is for the Council to balance 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 in the preamble to Regulation No 1049/2001, from increased
         openness, 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,
         are of particular relevance where the Council is acting in its legislative capacity.
      
      107    However, the Court of Justice has also stated that the non-legislative activity of the institutions does not fall outside
         the scope of Regulation No 1049/2001. Suffice it to note in that respect that Article 2(3) of that regulation states that
         the latter applies to all documents held by an institution, that is to say, drawn up or received by it and in its possession,
         in all areas of EU activity (see, to that effect, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraphs 87, 88 and 109).
      
      108    In the third place, the Council claims that, contrary to the criticism levelled at it by the General Court, as set out in
         the judgment under appeal, it had explained why, in the light of the circumstances of the case, public access to document
         11897/09 was likely to undermine the interest protected by the exception in Article 4 of Regulation No 1049/2001.
      
      109    As regards, on the one hand, the Council’s arguments as to the existence of a real risk of harm to the international negotiations,
         in that the European Parliament would seek to use the information contained in the legal opinion in order to influence the
         ongoing negotiations and to challenge the legality of the Council’s decision on the conclusion of the proposed agreement,
         suffice it to note that that criticism overlooks the fact that the General Court decided that the Council was justified in
         refusing access to those parts of document 11897/09 that related to the specific content of the proposed agreement and the
         strategic objectives which the European Union pursued in the negotiations. However the Council did not provide any evidence
         to establish how the disclosure of the remainder of that document would have given rise to such risks. 
      
      110    On the other hand, as regards the Council’s argument that the General Court failed to take account of the fact that the negotiations
         were ongoing at the time of the request for access to document 11897/09, it must be noted that the General Court did in fact
         explicitly examine that consideration in paragraphs 72 and 73 of the judgment under appeal, and concluded that it had already
         been taken into account by the recognition of the wide discretion given to the institutions in applying the exception under
         the third indent of Article 4(1)(a) of Regulation No 1049/2001.
      
      111    In the light of the foregoing considerations, the first part of the second plea raised by the Council in support of its appeal
         must be rejected. 
      
      112    Given that the Council has, in the context of the first part of its second ground of appeal, unsuccessfully challenged the
         General Court’s reasoning in the judgment under appeal — on the basis of which the General Court held, in paragraph 102 of
         that judgment, that the matters invoked in the decision at issue did not prove that the disclosure of document 11897/09 would
         have undermined the protection of legal advice —, there is no need to examine the second part of that plea, since the arguments
         set out are ineffective. That part of the plea relates to the General Court’s alternative grounds, according to which the
         Council had in any event failed to ascertain whether there was an overriding public interest justifying fuller disclosure
         of document 11897/09 in accordance with the second indent of Article 4(2) of Regulation No 1049/2001.
      
      113    It follows from all of the foregoing considerations that the second plea must also be rejected; accordingly the appeal must
         be dismissed in its entirety. 
      
       Costs
      114    Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make
         a decision as to the costs. 
      
      115    Under Article 138(1) of the Rules of Procedure, which applies to the procedure on an appeal by virtue of Article 184(1) of
         those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s
         pleadings. Article 140(1) of the Rules of Procedure provides that the institutions which have intervened in the proceedings
         are to bear their own costs. 
      
      116    Since the Council has been unsuccessful and Ms in ’t Veld has applied for costs, the Council must be ordered to pay the costs.
         The European Parliament and the Commission shall bear their own costs.
      
      On those grounds, the Court (First Chamber) hereby:
      1.      Dismisses the appeal;
      2.      Orders the Council of the European Union to pay the costs;
      3.      Orders the European Parliament and the European Commission to bear their own costs.
      [Signatures]
      * Language of the case: English.