Access to an opinion of the Council's Legal Service

Línguas disponíveis :  bg.es.cs.da.de.et.el.en.fr.ga.it.lv.lt.hu.mt.nl.pl.pt.ro.sk.sl.fi.sv
  • Caso : 1170/2009/KM
    Deschis la 4/Jun/2009, 4/Jun/2009 - Decizie din 19/Dez/2011
  • Instituţia (instituţiile) în cauză : Conselho da União Europeia
  • Domeniul (domeniile) juridic (juridice) : Europa dos cidadãos
  • Tipuri de presupusă administrare defectuoasă – (i) încălcarea sau (ii) încălcarea obligaţiilor privind : Pedidos de informação [Artigo 22° do CEBCA]
  • Subiectul (subiectele) : Pedidos de informações e acesso do público a documentos (transparência)
Key
Autor:
Direitos de autor: Stocklib ©

Summary of decision on complaint 1170/2009/KM against the Council of the European Union

In January 2009, a German citizen requested that the Council grant him access to an opinion by the Council's Legal Service discussing the legal basis for a regulation on genetically modified food and feed. This request was based on Regulation 1049/2001 on public access to documents. The Council granted access only to the introductory paragraphs of the opinion, arguing that the body of the document fell within the exception relating to the protection of legal advice.

The complainant turned to the Ombudsman, arguing that the Council had misinterpreted the judgment of the Court of Justice of the EU in Sweden and Turco v Council and that it should give access to the entire document. From a procedural point of view, he noted that, while not strictly required by Regulation 1049/2001, it would be better if the Council indicated the actual date on which the time limit for its reply expired. Also, in case of rejection of the application for access, it should not wait until its final rejection letter to inform applicants of the remedies available to them. This is because informing applicants at an earlier stage would ensure that they can use the legal remedies open to them once the time limit for the institution's reply has expired.

The Ombudsman opened an inquiry. The Council argued that the opinion was very sensitive and that the possibility of internal legal advice being published might undermine the usefulness of legal opinions. It further put forward that applicants are able to calculate the end of the time limit themselves and that informing them of the remedies available to them before the end of the time limit could lead to confusion.

The Ombudsman, having inspected the document, came to the preliminary conclusion that, on a proper reading of the Turco judgment, the Council had not shown that access had to be denied in order to protect its interest in receiving useful legal advice from its Legal Service. He therefore made a proposal for a friendly solution, suggesting that the Council grant full access to the document in question. In relation to the procedural points, he proposed that the Council inform applicants of the date on which a decision is due and of the remedies available to them before that date.

In its reply, the Council disagreed with the Ombudsman's analysis but decided nonetheless to grant access to the document, given the time which had passed. It also agreed to inform applicants of the date by which it must decide on their application. However, it rejected the proposal to inform applicants of the remedies available to them in advance.

The complainant confirmed that he had received the document and that he was satisfied with this outcome. The Ombudsman therefore considered that the case had largely been settled by the Council and that there were no grounds for further inquiries into the remaining issue in the present case. He therefore closed the case.