Jose Maria Sison v Council of the European Union.
Date: 2007-02-01
23. It should be recalled at the outset that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (Case C‑131/03 P Reynolds Tobacco and Others  v Commission  [2006] ECR I-0000, paragraph 49 and the case-law there cited).
33. With regard to judicial review of compliance with the principle of proportionality, the Court has thus held that the Community legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. It concluded from this that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, in particular, Case C-344/04 IATA and ELFAA  [2006] ECR I-403, paragraph 80 and the case-law there cited).
34. Contrary to the appellant’s submission, the Court of First Instance, in line with that case-law, correctly held, in paragraph 46 of the judgment under appeal, as regards the scope of the judicial review of the legality of a decision of the Council 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 the Council 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 Court of First Instance also correctly held, in paragraph 47 of the judgment under appeal, that the Community Court’s review 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.
35. In the first place, it must be accepted that the particularly sensitive and essential nature of the interests protected by Article 4(1)(a) of Regulation No 1049/2001, combined with the fact that access must be refused by the institution, under that provision, if disclosure of a document to the public would undermine those interests, confers on the decision which must thus be adopted by the institution a complex and delicate nature which calls for the exercise of particular care. Such a decision requires, therefore, a margin of appreciation.
36. Secondly, the criteria set out in Article 4(1)(a) of Regulation No 1049/2001 are very general, since access must be refused, as is clear from the wording of that provision, if disclosure of the document concerned would ‘undermine’ the protection of the ‘public interest’ as regards, inter alia, ‘public security’ or ‘international relations’.
37. In that regard, it is clear from an examination of the preparatory documents which preceded the adoption of that regulation that various proposals intended to define more precisely the scope of the public-interest exceptions to which Article 4(1)(a) of that regulation refers, which would undoubtedly have enabled the opportunities for judicial review in regard to the institution’s assessment to be correspondingly increased, were not accepted.
38. That is the case, in particular, with regard to the clarification contained in the Proposal of 27 June 2000 for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2000 C 177 E, p. 70), a clarification which was intended to restrict the scope of application of those exceptions to cases which could ‘significantly undermine’ the protection of those interests. That is also the case with regard to the 30th amendment to the abovementioned proposal, contained in the legislative proposal in the Report of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs of the European Parliament (A5-0318/2000), where it was suggested that Article 4 be amended in such a way that access would be refused where disclosure of a document could ‘significantly’ undermine public security or a ‘vital interest’ relating to the Union’s international relations.
39. Thirdly, and as the Council correctly submits, Article 67(3) of the Rules of Procedure of the Court of First Instance does not cast doubt on the correctness of the principles stated in paragraphs 46 and 47 of the judgment under appeal. That provision, which features in Title II, Chapter 3, Section 2, of those Rules, dealing with measures of inquiry, merely provides in its third subparagraph that ‘[w]here a document to which access has been denied by a Community institution has been produced before the Court of First Instance in proceedings relating to the legality of that denial, that document shall not be communicated to the other parties’. Such a provision is intended, above all, to safeguard the effects of the decision, which has been adopted by an institution, not to disclose a document so long as the Court of First Instance has not decided on the substance of the case, since such non-disclosure is precisely the issue in the dispute submitted to that Court. On the other hand, that procedural provision, even though it shows that the Court may, where appropriate, be required to take cognisance of a document to which the public has been denied access, cannot have any relevance whatever for the purpose of defining the limits of the scope of the judicial review incumbent on the Community Courts under the EC Treaty.
61. As is clear from Article 1 of Regulation No 1049/2001, read, in particular, in the light of the fourth recital in the preamble, the purpose of the regulation is to give the fullest possible effect to the right of public access to documents held by the institutions.
62. However, it also follows from that regulation, particularly from the 11th recital in its preamble and from Article 4, which provides for a scheme of exceptions in that regard, that the right of access to documents is nonetheless subject to certain limitations based on grounds of public or private interest.
63. As they derogate from the principle of the widest possible public access to documents, such exceptions must, as the appellant has correctly observed, be interpreted and applied strictly (see, to that effect, Netherlands and van der Wal  v Commission , paragraph 27).
72. In view of the foregoing, the distortion of the facts which vitiates the judgment under appeal does not affect the operative part of that judgment, with the result that it need not be annulled on that ground (see, to that effect, Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission  [2006] ECR I-0000, paragraphs 133 and 134).
80. As is clear from settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Interporc  v Commission , paragraph 55 and the case-law there cited).
94. However, since it was not pleaded in support of the action for annulment of that decision brought before the Court of First Instance, such a ground of appeal constitutes a new plea in law which extends the subject-matter of the proceedings and cannot therefore be pleaded for the first time at the appeal stage.
95. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the Court of First Instance (see, inter alia, Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59; Case C-266/97 P VBA  v VGB and Others  [2000] ECR I-2135, paragraph 79; Joined Cases C‑456/01 P and C‑457/01 P Henkel  v OHIM  [2004] ECR I‑5089, paragraph 50; and Case C‑167/04 P JCB Service  v Commission  [2006] ECR I-0000, paragraph 114).