Appeal brought on 2 February 2005 by Kingdom of Sweden against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

(Case C-39/05 P)

(2005/C 106/27)

Language of the case: English

An appeal against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 (1) between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities, was brought before the Court of Justice of the European Communities on 2 February 2005 by Kingdom of Sweden, represented by K. Wistrand, acting as Agent.

The Appellant claims that the Court should:

Pleas in law and main arguments:

The Swedish Government submits that the Court of First Instance has infringed Community law in the judgment under appeal.

The Court of First Instance pointed out, on the one hand, that it is for the institutions to assess in each individual case whether the documents whose disclosure is sought actually fall within the exceptions set out in Regulation No 1049/2001 (2) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘openness regulation’).

On the other hand, the Court of First Instance upheld the Council's assertion that there was a general need for confidentiality for legal opinions in legislative matters. That was so, first, because the disclosure of documents of that type could give rise to doubt as to the lawfulness of the legislation in question, and, second, because the maintenance of the independence of opinions from the Council's legal service can constitute an interest worthy of protection. On that basis, the Court of First Instance found that the Council did not make an error of judgment in refusing access to the legal opinion on the basis of the exception in the second indent of Article 4(2) of the openness regulation.

In the view of the Swedish Government, that conclusion is incompatible with the obligation to assess the question of disclosure in the light of the content of the specific document. That finding of the Court of First Instance thus infringed Community law.

(1)  OJ C 112, 10/05/2003, p. 38.

(2)  OJ L 145, 31/05/2001, p. 43.