Council of the European Union v Laurent Pech.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:461
• Date: 08 June 2023
• Docket Number: C-408/21
• Celex Number: 62021CJ0408
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Tenth Chamber)

8 June 2023 (*)

(Appeal – Access to documents – Regulation (EC) No 1049/2001 – Article 4(2), second indent – Protection of legal advice – Article 4(3), first subparagraph – Protection of the decision-making process – Refusal to grant full access to a legal opinion of the Council of the European Union’s Legal Service)

Case C‑408/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 July 2021,

Council of the European Union, represented by A. de Gregorio Merino, E. Dumitriu-Segnana, K. Pavlaki and E. Rebasti, acting as Agents,

appellant,

supported by:

French Republic, represented initially by A.-L. Desjonquères, A.-C. Drouant and E. Leclerc, acting as Agents, and subsequently by A.-L. Desjonquères and E. Leclerc, acting as Agents.

European Commission, represented by C. Ehrbar and P. Stancanelli, acting as Agents,

interveners in the appeal,

the other parties to the proceedings being:

Laurent Pech, residing in London (United Kingdom), represented initially by G. Andraos, avocat, O. Brouwer, advocaat, M. Hall, advokat, and B.A.R.T. Verheijen, advocaat, and subsequently by G. Andraos, O. Brouwer, T.C. van Helfteren, advocaten, and M. Hall, advokat,

applicant at first instance,

Kingdom of Sweden, represented initially by O. Simonsson, H. Eklinder, J. Lundberg, C. Meyer-Seitz, A.M. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson and H. Shev, acting as Agents, and subsequently by O. Simonsson, H. Eklinder, C. Meyer-Seitz, A.M. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson and H. Shev, acting as Agents,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of D. Gratsias (Rapporteur), President of the Chamber, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, the Council of the European Union seeks to have set aside the judgment of the General Court of the European Union of 21 April 2021, Pech v Council (T‑252/19, not published, ‘the judgment under appeal’, EU:T:2021:203), by which it annulled the decision of the Council of 12 February 2019 refusing full access to document ST 13593 2018 INIT containing the opinion of the Legal Service of the Council concerning the proposal by the European Commission, of 2 May 2018, for a regulation of the European Parliament and of the Council on the protection of the European Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final), which led to the adoption of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ 2020 L 443I, p. 1) (‘the decision at issue’).

Legal context

2 Recitals 1, 2, 3 and 6 of 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), read as follows:

‘(1) The second [paragraph] of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks 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.

(2) Openness 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. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.

(3) … This Regulation consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process.

…

(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.’

3 In accordance with Article 1(a) of that regulation:

‘The purpose of this Regulation is:

(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission … documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents’.

4 Article 4 of that regulation provides in the second indent of paragraph 2 and in paragraphs 3 and 6 thereof:

‘2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

…

– court proceedings and legal advice,

…

unless there is an overriding public interest in disclosure.

3. 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.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

…

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.’

5 Article 7(2) of that regulation states:

‘In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.’

Background to the dispute

6 The background to the dispute is set out in paragraphs 1 to 10 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as set out below.

7 On 30 October 2018, following the publication of a press article revealing the existence of an opinion of the Council’s Legal Service on the European Commission proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final) (‘the Commission’s proposal’), Mr Laurent Pech requested from the Council, pursuant to Regulation No 1049/2001, access to that opinion identified by it as document ST 13593 2018 INIT (‘the requested opinion’).

8 By decision of 10 December 2018, the Council granted partial access to the requested opinion.

9 On 20 December 2018, Mr Pech made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001.

10 By decision of 12 February 2019, the Council confirmed its decision to refuse full access to the requested opinion, on the basis, in the first place, of the first subparagraph of Article 4(3) of Regulation No 1049/2001 relating to the protection of an ongoing decision-making process. As is clear from paragraph 45 of the judgment under appeal, the Council stated that the Commission’s proposal, which was in the process of being adopted, and the discussions relating to it were complex, that the Member States had publicly expressed diverging positions and that, as a result, those ongoing discussions were delicate. It added that, in the current legal and political context, the debate on the envisaged measures, seeking to adopt a conditionality mechanism linking EU financing to respect for the rule of law, is particularly sensitive. Thus, if the analysis carried out by the Council’s Legal Service had been disclosed in full, some of the arguments set out therein could have given rise to external interference. According to the Council, the pressure which would have resulted might have complicated the negotiations, allowing members of the Council to accept compromise solutions or to pursue certain options and would thus have affected the possibility of reaching a final agreement on the Commission’s proposal. Furthermore, disclosure could also have limited the options available during interinstitutional procedures, namely during the negotiations with the Parliament and the Commission.

11 In the second place, the Council relied on the second indent of Article 4(2) of Regulation No 1049/2001, taking the view that full disclosure of the requested opinion could compromise the interest of the institution in seeking and receiving frank, objective and comprehensive legal advice. First, in view of its content, the requested opinion fell within the scope of the exception laid down in that provision, since it provided a detailed analysis on legal issues and in particular on the relevance of the legal basis for the Commission’s proposal, its compatibility with the EU Treaties and the legal feasibility of the adoption of measures under the envisaged mechanism. Secondly, the Council stated that, although the requested legal advice related to a legislative procedure for which a particularly high requirement of transparency applied, the issues touched upon were of a ‘systemic’ nature and had a broad scope that went beyond the context of the legislative process in question. Thirdly, the issues analysed in the requested opinion were highly contentious and particularly controversial, which made the legal advice...