The Court of Justice in Joined Case C-39/05 P and C-52/05 P Sweden and Turco v Council overruled a judgment of the Court of First Instance refusing to give public access to a document of the Council's Legal service containing legal advice.
What happened was that Mr Turco asked the Council for access to the documents appearing on the agenda of the ‘Justice and Home Affairs’ Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimumstandards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the ground that it deserved special protection so as not to create uncertainty regarding the legality of the measure adopted further to that opinion.
Mr Turco then challenged the Council's refusal before the Court of First Instance. That court upheld the Council decision in its judgment in Case T-84/03 Turco v Council. The Court of First Instance held that disclosure of legal opinions such as the one requested could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service. The Court of First Instance held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.
Finally, Mr Turco and Sweden both appealed that judgment to the Court of Justice.
The Court of Justice held that the reasons advanced by the Council and upheld by the Court of First Instance for withholding legal advice from public gaze were wrong.
It held, first, as regards the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing different points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.
The Court continued that the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the EC legislature because the Council’s legal service had given an unfavorable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed.
Thus, the Court found that to submit, in a general and abstract way, that there is a risk that disclosure of legal advice relating to legislative processes may give rise to doubts regarding the lawfulness of legislative acts does not suffice to establish that the protection of legal advice will be undermined for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001 and cannot, accordingly, provide a basis for a refusal to disclose such advice.
The Council also submitted that public disclosure of its advice would erode the independence of its lawyers because pressure would be put on them by their political masters to change the advice. The Court dismissed that argument too. It held that, as regards the risk of pressure being applied to influence the content of opinions issued by the Council’s legal service, even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent on the Council to take the necessary measures to put a stop to it. The risk of affecting the independence of legal advice should be weighed against the overriding public interests which underlie Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of the preamble to Regulation No 1049/2001.
The Court did state that legal advice could be kept secret in some circumstances. The advice may be of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.