EU Law Blog

Access to Documents, Legal Advice, Legislation and Pluralism: Joined Case C-39/05 P and C-52/05 P

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.

It seems that the Court of Justice has been reading up on Sir Isaiah Berlin and pluralism.

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.

Transparency and Privacy: Case T-194/04

There's an obvious tension between transparency and privacy. Now the Court of First Instance has stepped right into the fight and sided categorically with transparency. In its recent judgment in Case T-194/04 The Bavarian Lager Co. Ltd. v. Commission the Court of First Instance renders almost nugatory the protection afforded by Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the EC institutions.

The story goes like this. The Commission commenced Article 226 EC proceedings against the United Kingdom because of some legislation in force at the time that restricted the import of foreign beer. The Commission, with a view to finding a satisfactory solution to the case, organized a meeting with British government officials and trade representatives. Ultimately, a solution was reached and the case closed. But then, an importer of German beer wanted to know the names of the individuals who attended the meeting. For what purpose you may well ask. The Commission asked the individuals concerned whether they agreed to have their names revealed. Five of those attendees, no doubt fearing retribution or harassment by the importer, refused to have their identity revealed. The Ombudsman got involved and handed down a scathing report denouncing the Commission for not revealing the identity of those who had refused to have their names disclosed, claiming they had no right to privacy. The Article 29 Working Party then handed down a report in response (but the Court of First Instance pays scant attention to that inconvenient truth). The German importer made a request for the minutes of the meeting with the names of attendees included under Regulation 1049/2001 (the public access to documents regulation). The Commission refused to disclose the names invoking data protection and the terms of Regulation 45/2001. The importer then challenged the Commission's refusal before the Court of First Instance.

The Court of First Instance annulled the Commission's refusal. The judgment must be read to be believed.

The Court held that the list of participants in the minutes contained personal data, since the persons who participated at that meeting could be identified there. Notwithstanding the fact that it was personal data, it was not protected by Regulation 45/2001 because the mere fact that a document contains such data does not necessarily mean that the privacy or integrity of the persons concerned is affected, even though professional activities are not in principle excluded from the concept of "private life".

It also held that the privacy and integrity of a person is not compromised even if personal data relating to that person is revealed. As a consequence, any objection by such a person to disclosure of the personal data cannot prevent disclosure under Regulation 1049/2001.

What was quite extraordinary was the way in which the European Data Protection Supervisor intervened to plead that the very regulation that established his office did not apply, referring to his "paper" on public access to documents and data protection.

Professional Secrecy, Presumption of Innocence and the Decision to Publish a Decision: Case T-474/04

It's a litigious world out there. Even a decision to publish a decision can be the object of an action for annulment. And be annulled, as in Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v. Commission.

In its judgment in Case T-474/04 the Court of First Instance annulled a decision of the Commission, taken by the antitrust Hearing Officer, to publish a decision finding antitrust violations containing references to the applicant, Pergan.

That sounds a bit weird. So here's the story. The Commission took a decision on 10 December 2003 (the peroxides decision) imposing fines on five undertakings for their participation in cartels on the market for organic peroxides. But the Commission did not fine Pergan nor did it find that it had breached the antitrust rules in the operative part of the decision. The Commission found that the proceedings against Pergan were time barred and that there was no need to refer to Pergan's participation in the infringement in the operative part of the peroxides decision, or to address the decision to it. The Commission did refer to Pergan in the grounds of the decision and described its alleged role in the cartels.

The Commission informed Pergan of the decision and sent it a copy informing it of its intention to publish a non-confidential version. Pergan then requested that all references to it be removed from the version to be published. That request was submitted to the Commission’s hearing officer. The hearing officer refused to remove from the definitive version the majority of the references made to Pergan on the ground that they were not business secrets.

Pergan then applied to the Court of First Instance to have the hearing officer's decision annulled.

The Court of First Instance agreed with Pergan and annulled the decision.

It held that the Commission had applied the obligation to respect professional secrecy in Article 287 EC too narrowly. The scope of that obligation went beyond protecting business secrets. According to the Court of First Instance, the protection of professional secrecy encompasses the principle of presumption of innocence. That presumption precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a decision bringing the administrative procedure to an end, unless that person has been able to challenge the substance of that decision. Because the operative part of the peroxides decision did not refer to it, Pergan could not and in fact did not challenge the peroxide decision itself.

The Court further held that, since the Commission’s findings relating to an infringement committed by an undertaking are capable of infringing the principle of the presumption of innocence, those findings must, in principle, be regarded as confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy. That principle stems from the need to respect the reputation and dignity of the person concerned as that person has not been finally found guilty of an infringement (see, by analogy, Case T‑15/02 BASF v. Commission , paragraph 604). The confidentiality of such information is confirmed by Article 4(1)(b) of Regulation No 1049/2001, which provides that information, whose disclosure would harm the protection of privacy and the integrity of the individual, is to be protected.

Commission Annual Report on Public Access to Documents

The Commission has published its annual report on the application of Regulation 1049/2001 on public access to its documents.

The report - COM(2007)548 final - that has just appeared covers the activities of the Commission in 2005. And it is the fourth such report. The last report, covering 2004, was published in 2005.

The report contains a useful summary of Ombudsman complaints, judgments of the Court of First Instance and cases pending before the Court of First Instance. There is also a statistical annex which shows that there were 3 173 initial requests for documents in 2005, up from 2 600 in 2004. Most requests are granted at the initial stage (68%), 23.5 % of initial refusals are partially revised and 8% revised in full at the confirmatory stage. The most popular area is that of antitrust (12.7 %) and only 1.24% of requests come from persons from non-European countries. Not a single request from the USA in 2005 !

Public access to court pleadings: Case T-36/04

What a plethora of judgments and orders today! Let us just take them one by one, starting with the judgment of the Court of First Instance, Grand Chamber no less, finding that the Commission was wrong to refuse to disclose certain pleadings lodged before the EC courts to the public.

In its judgment in Case T-36/04 API v. Commission the Court of First Instance mostly upheld the claim by a group of journalists that public access should be granted to pleadings which the Commission had lodged in certain cases before the Court of First Instance itself and before the Court of Justice.

Regulation 1049/2001 grants members of the public a general right of access to documents of the institutions. But it provides for exceptions to that general principle, in particular where disclosure of a document would undermine the protection of court proceedings or the purpose of investigations, unless there is an overriding public interest in disclosure.

API, a group of foreign journalists based in Belgium, asked the Commission for access to all the written submissions made by the Commission to the Court of First Instance or the Court of Justice in a number of cases. The Commission granted access to the pleadings in preliminary reference cases but refused to disclose the pleadings in direct actions. It justified the refusal on the grounds that in some cases disclosure would adversely affect the pending court proceedings, harming inter alia its position as a party and the serenity of the debate. It also refused to grant access in a case that was closed because disclosure of its pleadings would adversely affect other proceedings, which were still pending. It refused to disclose the pleadings in infringement cases because, even though those cases had been closed by judgments of the Court of Justice finding that the member States concerned had failed to fulfil their obligations, those States had not yet complied with the judgments, so negotiations were still in progress to bring the infringements to an end. Accordingly, disclosure could prejudice the investigations relating to those infringements.

The Court of First Instance largely disagreed with the Commission and partially (but mostly) annulled its decision refusing access. It held that when a case had reached the stage of the oral hearing, for which a report for the hearing is produced and is available to the public, the Commission could no longer invoke an exception to the general right of public access, such as the protection of court proceedings or the purpose of investigations, for whole categories of documents. The Commission, the Court held, had to justify any refusal in respect of each document.

But the Court of First Instance did uphold the Commission's refusal to disclose pleadings in respect of cases that were still pending and which had not yet reached the oral procedure at the time of the request.

Of course, the judgment is a bit more complicated than that and you should read the whole thing. The Court has also put out a good press release that gives more detail.

The API itself is still not satisfied...

Civil Society Involvement: Stakeholder Dialogue Group for Health and Consumer Protection

The Commission has created a "Stakeholder dialogue group" for public health and consumer protection.

The creation of this group is part of the practical implementation of the Commission's desire to raise further the quality of its consultations, as set out in its Communication COM(2007) 127 final, as well as its White Paper on European Governance.

The role of the new group will not be to discuss Commission policy initiatives but to advise the Commission on how to improve the stakeholder consultation process required by Protocol (N° 30) on subsidiarity and proportionality (1997).

So, if we've understood correctly, the Commission will consult it on how to consult others....

Transparency, partial access and Case T-264/04

The Court of First Instance dismissed an action brought by WWF European Policy Programme against the Council for having refused to give it access to certain documents relating to the position of the EU on "WTO - Sustainability and Trade after Cancun".

The Court of First Instance dismissed WWF European Policy Programme's action in Case T-264/04 WWF European Policy Programme v. Council on the ground that the complete refusal was in accordance with the provisions in Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents containing exceptions to the general principle that public access should be granted.

The judgment is particularly interesting in that it upheld the claim of the Council that partial access could not be granted. Under Article 4(6) of Regulation 1049/2001 the EU institutions are obliged to consider whether partial access can be given, that is whether an edited version of the document requested can be given. The Council claimed that the document requested by the plaintiff was covered in its entirety by exceptions allowing it to refuse to disclose the contents of the document.

Ombudsman and EDPS conclude agreement, non-aggression pact

The European Ombudsman and the European Data Protection Supervisor have concluded a "memorandum of understanding" that has been published recently.

The idea behind this agreement is to avoid the duplication of procedures should the same complaint be received by both. The Ombudsman undertakes to consult the EDPS on the interpretation of Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data if a difficult point comes up in a pending complaint. Interestingly, the memorandum makes clear that in principle breaches of Regulation 45/2001 are for the EDPS to look into whereas refusals to give access to documents under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents are for the Ombudsman.

The potential for conflict between the EDPS and the Ombudsman is great as this opinion dated May 17th 2001 of the Data Protection Working Party (Article 29 Working Party) on the Ombudsman's Special Report to the European Parliament following complaint 713/98IJH shows. In those documents, the Article 29 Working Party and the Ombudsman took diametrically opposite views as to whether the identity and addresses of persons who had attended meetings with the Commission services were protected personal data.

Rather disingenuously, the memorandum of understanding makes no mention of that particular spat. A case of maladministration, perhaps ?

Transparency, terrorism and confidential documents: Case C-266/05 P

The Court of Justice handed down an interesting judgment in Case C-266/05 P Sison v. Council.

The case concerned those infamous lists of persons whose assets are to be frozen with a view to combatting terrorism. They have already been the subject of some litigation as we noted here, here and here. This case concerns a different twist. The appellant, Mr. Sison, was listed in Council Decision 2002/848/EC, which implements Regulation 2580/2001, as a person whose assets should be frozen. He then made a number of requests under Regulation 1049/2001 for access to certain documents which had led the Council to include him in the list and he also asked the Council to disclose the identity of the member State that had provided the documents.

The Council turned down all his requests. The Council claimed that giving him any access to the documents requested would be against the public interest within the meaning of Article 4 (1) (a) of Regulation 1049/2001. The Council also refused to identify the member States that had provided certain documents because the states concerned had opposed such disclose in accordance with Article 9 (3) of Regulation 1049/2001.

Mr. Sison then challenged the Council decisions before the Court of First Instance.

Then the Court of First Instance upheld the Council decisions and dismissed Mr. Sison's actions in a judgment in Joined Cases T-110/03, T-150/03 and T-405/03 Sison v. Council.

Now the Court of Justice has rejected Mr. Sison's appeal and upheld the Court of First Instance.

The Court of Justice held that the Council enjoys wide discretion to determine whether disclose of documents could undermine the public interest. The Court emphasized that the purpose of Regulation 1049/2001 was to grant the general public access to documents, subject to certain exceptions. Its purpose was not to lay down rules designed to protect any particular interest that a specific individual may have in gaining access to them. In other words, Regulation 1049/2001 is not there to provide any form of due process.

The practical result is that if Mr. Sison cannot get access to his file (but see Case T-228/02 Organisation des Modjahedines du peuple d'Iran v. Council and our post here on that) in the course of the administrative procedure leading to his name being included in the list, then making a request for public access is of no assistance.

OLAF, the press and corruption: Case T-193/04

The facts which led to the judgment of the Court of First Instance in Case T-193/04 Hans-Martin Tillack v. Commission hardly evoke ee cummings' famous poem:

i sing of Olaf glad and big
whose warmest heart recoiled at war:

What happened was this. In February and March 2002, Mr Tillack, a journalist at the German magazine Stern, published two articles in which he alleged that there were instances of misfeasance by officials within the European institutions to which attention had been drawn by another official of the European Communities, a certain Mr Van Buitenen. The Commission's anti-fraud and corruption office, OLAF, carried out an investigation to identify the bureaucrats who were the source of the leak of the memorandum written by Mr Van Buitenen. OLAF stated in a press release of March 27th, 2002 that

‘it is not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents’

. Stern admitted to being in possession of the Van Buitenen memorandum but denied that it paid money to obtain documents. Mr Tillack complained of the OLAF press release of March 27th 2002 to the European Ombudsman, who, in a recommendation to OLAF, stated that making allegations of bribery without a factual basis constituted an instance of maladministration. In February 2004, OLAF sent information concerning suspicions of breach of professional secrecy and bribery to the public prosecutor in Brussels and Hamburg. An investigation into alleged corruption and for breach of professional secrecy was opened in Belgium. The Belgian police conducted raids and searched Mr Tillack’s home and office and basically trashed both places.

Mr Tillack was not thrilled and brought an action before the Court of First Instance to annul the measure by which OLAF sent information to the public prosecutor in Brussels and Hamburg, and for damages to compensate for the harm suffered.

The Court of First Instance dismissed Mr. Tillack's claims.

In the first place, the Court of First Instance held that there was no legally binding measure to annul. The action OLAF took by sending information to the national authorities has no binding legal effect on them because they remain free to decide what action should be taken following an OLAF investigation. Consequently, any investigation and prosecution by the national authorities is a matter within their sole and entire responsibility.

As for the action for damages, the Court held there was no direct causal link between OLAF sending the information to the Belgian judicial authorities and the damage alleged in order for liability to be established on that basis.

The interesting bit is where the Court of First Instance finds that the characterization of behavior as an ‘act of maladministration’ by the Ombudsman in his decision on Mr. Tillack's complaint does not mean, in itself, that OLAF’s conduct constitutes a sufficiently serious breach of a rule of law.

For good measure, Mr. Tillack's claims for injunctive relief were dismissed at first instance and on appeal.

Since then, you'll be relieved to learn, OLAF has turned its attention to the serious problem of garlic smuggling. To the relief of the vampires in the EU.