Case T‑852/16

Access Info Europe

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — EU-Turkey statements of 8 and 18 March 2016 — Implementation by the European Union or by the Member States of the measures concerned — Documents drawn up or received by the legal service of an institution — Legal advice — Analyses of the legality of the measures provided for in connection with the implementation of the EU-Turkey statement of 18 March 2016 — Refusal to grant access — Article 4(1)(a) of Regulation No 1049/2001 — Exception relating to the protection of the public interest in respect of international relations — Second indent of Article 4(2) of Regulation No 1049/2001 — Exception relating to the protection of court proceedings — Exception relating to the protection of legal advice)

Summary — Judgment of the General Court (First Chamber), 7 February 2018

1. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Obligation to state reasons—Scope

   (European Parliament and Council Regulation No 1049/2001, Recital 11 and Art. 4)

2. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of the public interest—Judicial review—Scope—Limits

   (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a))

3. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of the public interest—International relations—Scope—Emails from an institution containing a letter, attached to those emails, relating to the assurances provided by a third country concerning the treatment by it to nationals from another third country—Included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

4. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of the public interest—International relations—Refusal to grant access—Obligation to state reasons—Scope

   (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

5. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of court proceedings—Overriding public interest justifying the disclosure of documents—Requirement that the institution should weigh the opposing interests

   (European Parliament and Council Regulation No 1049/2001, Recital 2 and Art. 4(2), second indent)

6. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of court proceedings—Scope—Internal documents relating to a pending case—Included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

7. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of court proceedings—Scope—Written submissions lodged by a Member State before the EU Courts in pending cases—General presumption that the exception to the right of access applies

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

8. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of legal advice—Meaning—Scope—Disclosure of legal opinions concerning legislative processes—General need for confidentiality—None

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

9. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of legal advice—Scope—Interservice analyses drawn up for the purpose of a political dialogue between an institution and representatives of a Member State and a third State—Included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

10. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of legal advice—Overriding public interest justifying the disclosure of documents—Invocation of the principle of transparency—Need to put forward particular considerations in relation to the case

    (European Parliament and Council Regulation No 1049/2001, Art. 4(1) and (2), second indent)

11. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Mandatory exceptions—Prior balancing of the interests at stake—Not included

    (European Parliament and Council Regulation No 1049/2001, Art. 4(1))

12. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the principle of access to documents—Obligation to grant partial access to data not covered by the exceptions—Observance of the principle of proportionality

    (European Parliament and Council Regulation No 1049/2001, Art. 4(6))

1.  See the text of the decision.

   (see paras 35-37, 60)

2.  See the text of the decision.

   (see para. 40)

3.  In relation to public access to documents, the disclosure of elements connected with the objectives pursued by the European Union and its Member States in decisions, in particular when they deal with the specific content of an agreement envisaged or the strategic objectives pursued by the European Union in negotiations, would damage the climate of confidence in the negotiations which were ongoing at the time of the decision refusing access to documents containing those elements.

   In that regard, in the context of international negotiations, the positions taken by the European Union are, by definition, subject to change depending on the course of those negotiations, and on concessions and compromises made in that context by the various stakeholders. The formulation of negotiating positions may involve a number of tactical considerations on the part of the negotiators, including the European Union itself, so that disclosure of the European Union’s own negotiating positions in international negotiations could undermine the protection of the public interest as regards international relations.

   In those circumstances, no manifest error of assessment is made by an institution in relying, as regards emails containing the observations of its Legal Service on a letter, attached to those emails, relating to the assurances provided by a third country concerning the treatment to be given by it to nationals from another third country, on the exception relating to the protection of international relations referred to in Article 4(1) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

   (see paras 43-46)

4.  In the context of a decision refusing access to documents whose communication could undermine the exception relating to the protection of the public interest in respect of international relations under the third indent of Article 4(1)(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the institution concerned is not required to identify, in the statement of reasons for the act, the sensitive content of the documents requested that cannot be revealed by the disclosure, where such a step would entail revealing information the protection of which is covered by the exception relied on.

   Accordingly, it is without a manifest error of assessment that an institution deciding on a request for access covering documents relating to international negotiations justifies the refusal of access on the ground that the disclosure of such documents carries a specific risk of complicating the European Union’s position in the dialogue with a third country and, consequently, of affecting the European Union’s relations. In addition, that institution is entitled to merely provide a summary statement of that ground where providing more comprehensive information would entail revealing the content of the documents coming within the protection provided for by that provision, in disregard of the scope of the imperative protection provided for by the legislature in the wording of Article 4(1) of Regulation No 1049/2001.

   (see paras 51, 114)

5.  See the text of the decision.

   (see para. 61)

6.  As regards the exception relating to the protection of court proceedings referred to in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it means that the protection of the public interest precludes the disclosure not only of the content of documents drawn up solely for the purposes of specific court proceedings, that is to say, pleadings or other documents lodged, but also internal documents concerning the investigation of the pending case, and correspondence between the Directorate General concerned and the institution’s Legal Service or a law firm, the purpose of this definition of the scope of the exception in that case being to ensure both the protection of work done within the Commission and the confidentiality and safeguarding of professional privilege for lawyers.

   (see para. 62)

7.  See the text of the decision.

   (see paras 63, 64, 67)

8.  See the text of the decision.

   (see paras 82, 83)

9.  As regards documents containing legal consultations addressed to the cabinets of the President of the Commission, the High Representative of the Union for Foreign Affairs and Security Policy and the member of the Commission responsible for Home Affairs, which were sought at short notice, in order to assist representatives of the Commission’s representatives in their meetings with the representatives of a Member State and a third country on the measures the latter are to adopt as part of the implementation of the commitments undertaken in the statements of the EU and that third country in relation to a migration crisis, the disclosure of such legal advice, which was preparatory and internal and drawn up for the purpose of political dialogue between the institution and representatives of a Member State and a third State could undermine, in a foreseeable manner, the Commission’s interest in seeking and receiving frank, objective and comprehensive advice from its various departments in order to prepare its final position as an institution, in an area of certain high political sensitivity and in a context of urgency in order to address a delicate migration situation. The interdepartmental consultations, accompanied by telephone conversations, are preparatory work that is essential in the proper running of that institution.

   The frankness, objectivity and comprehensiveness, as well as the expeditiousness of those legal consultations, given in a situation of urgency by the members of the Legal Service to the cabinet of the President of the Commission and the Directorate General concerned would be affected if the drafters of those consultations, drafted in haste in order to lay the groundwork for meetings between officials of that institution and those of a Member State and a third State, had had to anticipate that such emails would be made available to the public.

   (see paras 86-88)

10.  See the text of the decision.

    (see paras 96-99, 105)

11.  See the text of the decision.

    (see para. 102)

12.  See the text of the decision.

    (see paras 110, 111)