Judgments nº T-233/09 of The General Court, March 22, 2011

• Resolution Date: March 22, 2011
• Issuing Organization: The General Court
• Decision Number: T-233/09

In Case T‑233/09,

Access Info Europe, established in Madrid (Spain), represented by O.W. Brouwer and J. Blockx, lawyers,

applicant,

v

Council of the European Union, represented by C. Fekete and M. Bauer, acting as Agents,

defendant,

supported by

Hellenic Republic, represented by E.-M. Mamouna and K. Boskovits, acting as Agents,

and by

United Kingdom of Great Britain and Northern Ireland, represented by E. Jenkinson and S. Ossowski, acting as Agents, and by L.J. Stratford, Barrister,

interveners,

ACTION for annulment of the Council’s decision of 26 February 2009 refusing access to certain information, contained in a note of 26 November 2008, concerning a proposal for a regulation regarding public access to European Parliament, Council and Commission documents,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 6 October 2010,

gives the following

Judgment

Legal context

1 Under Article 255 EC:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.’

   2 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) lays down, pursuant to Article 255(2) EC, the principles, conditions and limits governing the right of access to those documents.

   3 Article 4 of Regulation No 1049/2001 sets out a number of exceptions to the right of access to European Parliament, Council and Commission documents, which Article 2 of that regulation grants to any citizen of the European Union and to any natural or legal person residing or having its registered office in a Member State.

   4 Specifically, the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides:

   ‘Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

   5 Under Article 207(3) EC:

   ‘The Council shall adopt its Rules of Procedure.

   For the purpose of applying Article 255(3) [EC], the Council shall elaborate in these Rules the conditions under which the public shall have access to Council documents. For the purpose of this paragraph, the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public.’

   Facts

   6 By email of 3 December 2008, the applicant association – Access Info Europe – applied to the Council under Regulation No 1049/2001 for access to a note of 26 November 2008 from the Secretariat General of the Council to the Working Party on Information set up by the Council, concerning the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (‘the requested document’). That document contains the proposals for amendments, or for re-drafting, entered by a number of Member States at the meeting of the working party on 25 November 2008.

   7 By email of 17 December 2008, the Council granted Access Info Europe partial access to the requested document. The version sent to Access Info Europe included the proposals referred to above but did not make it possible to identify the Member States which had put those proposals forward. As justification for refusing to provide that information, the Council stated that its disclosure would seriously undermine the decision-making process, that there was no overriding public interest in disclosure and that, in consequence, the exception laid down in Article 4(3) of Regulation No 1049/2001 could be applied.

   8 By email of 16 January 2009, Access Info Europe submitted a confirmatory application under Article 7(2) of Regulation No 1049/2001.

   9 By decision adopted on 26 February 2009 (‘the contested decision’), the Council – through its Secretariat General – repeated its refusal, on the basis of Article 4(3) of Regulation No 1049/2001, to disclose the parts of the requested document which made it possible to identify the Member States which had entered the various proposals communicated at the meeting of the Working Party on Information of 25 November 2008. Following a request from Access Info Europe concerning the progress of the procedure, the Council sent it the contested decision in an email dated 3 April 2009. In that email, the Council states also that it had already sent Access Info Europe a copy of the contested decision in a letter sent on 26 February 2009.

   10 In the contested decision, the Council puts forward the following reasons to establish that disclosure of the identity of the Member States which had entered the various proposals for amendments would seriously undermine the Council’s decision-making process and that there was no overriding public interest in such disclosure:

   ‘The Working Party on Information, the Council’s preparatory body responsible for the proposal, has met several times to carry out a first examination of the proposal [for a regulation regarding public access to documents, submitted by the Commission on 30 April 2008 and currently being debated by both branches of the legislative authority under the co-decision procedure]. In the framework of these discussions, delegations have put forward preliminary views on the modifications contained in the Commission proposal. These discussions are still in a preliminary stage and no convergence of views has been recorded and no conclusions have been drawn on the issues raised. The written contributions contained in the requested document relate to three particularly sensitive issues in the context of the preliminary discussions within the Council, which have not, until now, been [the] subject of detailed discussions in the Working Party on Information. In view of the early stage of the decision-making process where thorough discussions have not yet taken place on the delicate issues raised in the requested document and a clear approach has not yet emerged on these issues, disclosure of the name of the delegations that have made the proposals contained in the document would adversely affect the efficiency of the Council’s decision-making process by compromising the Council’s ability to reach an agreement on the dossier, and, in particular, narrow those delegations’ room for compromise within the Council.

   In fact, the risk of seriously undermining the Council’s decision-making procedure is reasonably foreseeable and not purely hypothetical. If it were to be accepted that such documents containing the written position of delegations on particularly sensitive issues were to be disclosed in their entirety in an ongoing decision-making procedure, delegations would be induced to cease submitting their views in writing, and instead would limit themselves to oral exchanges of views in the Council and its preparatory bodies, which would not require the drawing up of documents. This would cause significant damage to the effectiveness of the Council’s internal decision-making process by impeding complex internal discussions on the proposed act, and it would also be seriously prejudicial to the overall transparency of the Council’s decision-making.

   The Council has weighed the public interest relating to the efficiency of its internal decision-making against the public interest in increased openness, which guarantees that the EU institutions enjoy greater legitimacy and are more accountable to the citizens, in particular when they act in their legislative capacity. It was precisely as a result of this balancing that the Secretariat General decided, in reply to [the] initial request, to release the content of the requested document, whilst suppressing the name of the respective delegations. This solution enables, on one hand, citizens to scrutinise, in accordance with the democratic principles, the information which forms the basis of the proposed legislative act under discussion within the Council, and on the other, to preserve the effectiveness of the Council’s decision-making process, as explicitly provided for in Article 207(3) TEC.

   The Council has also examined whether it would be possible to assess, on a deletion-by-deletion basis, whether the name of the Member States concerned could be released. However, this option was rejected because it would lead to very arbitrary assessments which themselves could be challenged. This approach does not, of course, prevent the Member State delegations concerned from making public their own position, as they see fit.’

   Procedure and forms of order sought

   11 By application lodged at the Registry of the General Court on 12 June 2009, Access Info Europe brought the present action.

   12 By order of 23...