Council of the European Union v Access Info Europe.
Date: 2013-10-17
27. In order to rule on this ground of appeal, it should be noted that, in accordance with recital 1 to Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 to that regulation, the public right of access to documents of the institutions is related to the democratic nature of those institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco  v Council  [2008] ECR I‑4723, paragraph 34; Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission [2010] ECR I‑8533, paragraph 68; and Case C‑506/08 P Sweden  v MyTravel and Commission  [2011] ECR I‑6237, paragraph 72).
28. To that end, 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 ( Sweden and Turco  v Council , paragraph 33; Sweden and Others  v API and Commission , paragraph 69; and Sweden  v MyTravel and Commission , paragraph 73).
29. 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 that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (see Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 62; Sweden and Others  v API and Commission , paragraphs 70 and 71; and Sweden  v MyTravel and Commission , paragraph 74).
30. Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly ( Sison  v Council , paragraph 63; Sweden and Turco  v Council , paragraph 36; Sweden and Others  v API and Commission , paragraph 73; and Sweden  v MyTravel and Commission , paragraph 75).
31. Thus, 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. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical ( Sweden v MyTravel and Commission , paragraph 76 and the case-law cited).
32. Moreover, if the institution applies one of the exceptions provided for in Article 4 of Regulation 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 ( Sweden and Turco v Council , paragraph 45).
33. Moreover, the Court has also held that those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, a fact reflected in recital 6 to Regulation No 1049/2001, which states that wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights ( Sweden and Turco  v Council , paragraph 46).
60. In paragraph 76 of the judgment under appeal, the General Court stated that the preliminary nature of the discussions does not, in itself, justify application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. Accordingly, having ruled out the possibility that the Council’s other arguments could establish a risk of its decision-making process being undermined, the General Court rightly found that the mere fact that the request for disclosure was made at a very early stage in the legislative process was not sufficient to allow the application of that exception.
65. Secondly, as concerns the other arguments relied on by the Council in support of the third part of its third ground of appeal, it should be recalled that, according to settled case-law of the Court of Justice, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C‑510/06 P Archer Daniels Midland  v Commission  [2009] ECR I‑1843, paragraph 105, and the Order of 10 November 2011 in Case C‑626/10 P Agapiou Joséphidès  v Commission and EACEA  [2011] ECR I‑169, paragraph 107).
72. As regards the substance, it should be noted that, according to settled case-law, although, in order to justify refusing access to a document, it is not sufficient, in principle, for the document to fall within an activity or an interest referred to in Article 4 of Regulation No 1049/2001, as the institution concerned must also explain how access to that document could specifically and actually undermine the interest protected by an exception laid down in that provision, it is nevertheless open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of document, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature ( Sweden and Turco  v Council , paragraph 50; Case C‑139/07 P Commission  v Technische Glaswerke Ilmenau  [2010] ECR I‑5885, paragraph 54; and Case C‑477/10 P Commission  v Agrofert Holding  [2012] ECR I‑0000, paragraph 57).
73. While, in such a case, the institution concerned would not be under an obligation to carry out a specific assessment of the content of each of those documents, it must nevertheless specify on which general considerations it bases the presumption that disclosure of the documents would undermine one of the interests protected by the exceptions under Article 4 of Regulation No 1049/2001 (see, to that effect, Sweden and Others  v API and Commission , paragraph 76).