Appeal brought on 24 July 2012 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 4 May 2012 in Case T-529/09: Sophie in ’t Veld v Council of the European Union

(Case C-350/12 P)

2012/C 303/29

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: P. Berman, B. Driessen, Cs. Fekete, Agents)

Other parties to the proceedings: Sophie in ’t Veld, European Commission

Form of order sought

The appellant claims that the Court should:

and

Pleas in law and main arguments

The present appeal concerns the interpretation of the exceptions relating to the protection of the public interest as regards international relations and to the protection of legal advice. These exceptions are set out respectively in an absolute exception to the right of public access in the third indent of Article 4(1)(a) and in a qualified exception to the right of public access in the second indent of Article 4(2) of the Regulation (1).

The Council submits that the General Court, in its interpretation of the said exceptions, made four mistakes.

First, the General Court errs in holding that a disagreement on the choice of a legal basis cannot undermine the EU's interests in international relations (first limb of the first plea). Disputes on Union competence and on the choice of the legal basis between the institutions are closely intertwined with conflicts on the substance of international agreements. Disputes on competence between the institutions may moreover impact on the negotiating position of the EU, adversely affect its credibility as a negotiating partner and jeopardise the outcome of the negotiations.

Secondly, the General Court applied the wrong standard of review and replaced the Council's assessment of the significance for international relations of the document concerned with its own (second limb of the first plea). In relation to the protection of the public interest in international relations, the standard of review if one that accords ‘wide discretion’ to the institution concerned rather than requiring the demonstration of ‘actual and specific’ harm. The General Court erred in law in carrying out a full review of the Council's reasons by applying the ‘actual and specific’ harm requirement, thereby replacing the Council's assessment of the foreign policy consequences of the public release of the document with its own assessment.

Thirdly, the General Court erred in law by failing to consider both the sensitive content of the requested legal opinion and the specific circumstances prevailing at the time that access was sought (first limb of the second plea). The matter dealt with in the legal opinion relates to sensitive international negotiations which were still on-going at the time of the access request, where essential and vital interests in the area of transatlantic cooperation on the prevention and combating of terrorism and terrorist financing were at stake and where the issue of the choice of the legal basis addressed in the legal opinion was the subject of disagreement between the institutions. The General Court overlooked these specific characteristics of the legal advice.

Last, the General Court erroneously assimilated the negotiation and conclusion of an international agreement with the institutions’ legislative activities for the purposes of applying the overriding public interest test (second limb of the second plea). By doing so, the General Court overlooked important differences between the negotiation of international agreements, where public participation is necessarily restricted in view of the strategic and tactical interests at stake, and the conclusion and transposition of such agreements.

(1)  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 L 145, p. 43