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Draft recommendation to the Council of the European Union in complaint 2371/2003/GG

(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The complainant, a research assistant at the University of Munich, is preparing a thesis on EU asylum law. In the course of his research, he requested access to Council document no 10678/99, an opinion of the Council’s Legal Service concerning the application of the Protocol, annexed to the Treaty of Amsterdam, on asylum for nationals of Member States of the European Union.

On 24 November 2003, the Council rejected the complainant’s confirmatory application for access on the basis of Article 4 (2) of Regulation no 1049/2001.

In his complaint to the Ombudsman, the complainant alleged that the decision of the Council was not in conformity with the law. He submitted that, in view of its clear wording, Article 4 (2), second indent of Regulation 1049/2001 was not applicable in the present case. According to this provision, access to a document shall be refused “where disclosure would undermine the protection of (…) legal advice (…) unless there is an overriding public interest in disclosure”. According to the complainant, the Council ought to have referred to Article 4 (3) instead.

The complainant pointed out that the relevant document was already four years old, did not concern an ongoing decision-making process and that a corrigendum to the document concerned (Council document no 10678/99 COR 1) was accessible. In the complainant’s view, the reasoning of the Council was arbitrary and incompatible with standards imposed by the rule of law.

The complainant claimed that the Council should grant access to the document concerned.

THE INQUIRY

The Council’s opinion

In its opinion, the Council made the following comments:

Document 10678/99 was a contribution of the Council’s Legal Service to the proceedings of the Asylum Working Party with regard to the Protocol on asylum for nationals of Member States of the European Union, annexed by the Treaty of Amsterdam to the Treaty establishing the European Community. This document concerned the extent of the obligation for Member States to inform the Council in case of unilateral action of a Member State.

In the decision of 24 November 2003 on the complainant’s confirmatory application, the reasons for the refusal to disclose the document on the grounds of Article 4 (2), second indent of Regulation No 1049/2001 had been explained in detail.

As the Ombudsman had noted in a similar case(2), a case pending before the Court of First Instance (Case T-84/03, Maurizio Turco v Council) raised the same issue of interpretation of Regulation 1049/2001 as had been submitted by the complainant. In the light of this, it was suggested that, in line with the Ombudsman’s decision of 17 September 2003 on complaint 1015/2002/(PB)IJH, no decision should be taken by the Ombudsman on the matter until the outcome of the Turco case was known.

As regarded the fact that Corrigendum no 1 (“COR 1”) to document 10678/99 had been put in the public domain, it had to be noted that this corrigendum did not disclose any legal advice.

The Council submitted a copy of its decision of 24 November 2003 which contains inter alia the following considerations:

The case-law of the Court of Justice and the Court of First Instance quite clearly recognised the specific nature of documents containing legal advice and the public interest in the necessity to protect the provision of independent legal advice. This case-law showed that the disclosure of the opinions of the Legal Service would go against the public interest for the Council to be in a position to receive independent legal advice, which underlay the exception relating to legal advice in Article 4 (2), second indent of Regulation No 1049/2001.

A Council act could be held unlawful by the Court of Justice or the Court of First Instance despite the efforts of the Legal Service: either the advice of the Legal Service to the effect that the act was lawful could be mistaken, or the Council could disagree with a legal opinion that a certain act or part of it would not be legally correct. Such opinions, which were purely internal to the institution, could be used by others to mount legal challenges to the acts of the Council.

The security and stability of the legal order would be seriously jeopardised by the disclosure of the Legal Service’s opinions, even though these opinions did not reflect the views of a body which was empowered to take any decision, but merely the views of an independent service composed of civil servants. The uncertainty regarding the lawfulness of legislative acts which could follow from such disclosure would have consequences harmful to the public interest.

The only possible interpretation of the exception laid down in Article 4 (2), second indent of Regulation No 1049/2001 was that it covered all documents or parts thereof containing legal advice, unless there was an overriding public interest in disclosure.

Such an overriding public interest was constituted neither by the mere fact that the release of the document would be in the general interest of increasing transparency and openness of the institution’s decision-making process nor by the complainant’s view that he needed this document as an academic to support his further scientific research in this field. Otherwise this provision would be deprived of any ‘effet utile’.

The complainant's observations

In his observations, the complainant maintained his complaint and made the following further comments:

The Council excessively widened the scope of Article 4 (2), second indent of Regulation No 1049/2001 by referring to the ‘effet utile’ of this provision. It failed to take account of the fact that the Regulation had the opposite aim of ensuring the “widest possible access to documents”. Article 4 (2), second indent of Regulation No 1049/2001 therefore needed to be interpreted narrowly, taking into account the principle of proportionality.

According to the 6th recital of the Regulation, the Community interest in not disclosing a document was only relevant where the effectiveness of the institution’s decision-making process in its legislative capacity was concerned. This was not the case with document 10678/99.

The freedom of scientific research laid down in Article 13 of the Charter on Fundamental Rights and in Article II-13 of the draft Constitutional Treaty should be respected.

It was questionable whether the Turco case was relevant for the present case.

THE DECISION

1 Allegedly unlawful refusal to grant access to legal opinion

1.1 The complainant, a research assistant at the University of Munich who is preparing a thesis on EU asylum law, asked the Council of the European Union for access to Council document no 10678/99, an opinion of the Council’s Legal Service. According to the Council, this document is a contribution of the Council’s Legal Service to the proceedings of the Asylum Working Party with regard to the Protocol on asylum for nationals of Member States of the European Union, annexed by the Treaty of Amsterdam to the Treaty establishing the European Community. It concerns the extent of the obligation for Member States to inform the Council in case of unilateral action of a Member State. The confirmatory application for access was rejected on 24 November 2003. In order to justify its refusal, the Council invoked the exception relating to legal advice in Article 4 (2), second indent of Regulation No 1049/2001(3). The complainant alleged that Article 4 (2), second indent of Regulation 1049/2001 was not applicable in the present case and that the reasoning of the Council was both arbitrary and incompatible with standards imposed by the rule of law.

1.2 In its opinion, the Council took the view that opinions of its Legal Service could, if they were disclosed, be used by others to mount legal challenges to the acts of the Council. According to the Council, the uncertainty regarding the lawfulness of legislative acts which could follow from such disclosure would have consequences harmful to the public interest. In the Council’s view, the only possible interpretation of the exception laid down in Article 4 (2), second indent of Regulation No 1049/2001 was that it covered all documents or parts thereof containing legal advice, unless there was an overriding public interest. The Council submitted that the complainant’s academic interest in disclosure did not constitute such an overriding public interest. It further argued that a case pending before the Court of First Instance (Case T-84/03, Maurizio Turco v Council) raised the same issue of interpretation of Regulation 1049/2001 as had been brought by the complainant.

1.3 The European Ombudsman notes that, according to the Council, the relevant opinion of its Legal Service concerned the extent of the obligation for Member States to inform the Council in case of unilateral action of a Member State. It thus appears that this opinion relates to the interpretation of lit. d of the Sole Article of the Protocol on asylum for nationals of Member States of the European Union which is worded as follows: “Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases: (…) (d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.”

1.4 On 12 December 2002, the Ombudsman submitted to the European Parliament a special report in relation to complaint 1542/2000/(PB)SM. This special report concerned the issue of access to opinions of the Council’s Legal Service. In his special report, the Ombudsman took the view that a distinction should be drawn between different kinds of legal opinions. The Ombudsman considered that opinions given in the context of possible future court proceedings are analogous to a communication between a lawyer and a client. They should therefore normally be exempt from disclosure under Article 4 (2) of Regulation 1049/2001. In contrast, opinions on draft legislation should normally become available to the public when the legislative process has reached a conclusion. They should be exempt only if the institution can show, in accordance with Article 4 (3) of Regulation 1049/2001, that disclosure would seriously undermine its decision-making process and that there is no overriding public interest in disclosure.

1.5 The Ombudsman notes that the Council has not argued that the legal opinion to which the complainant seeks access was drawn up in the context of possible future court proceedings. On the contrary, all the arguments submitted by the Council appear to be concerned with the risk, perceived by the Council, that the disclosure of the relevant opinion could create uncertainty regarding the lawfulness of legislative acts and that it could be used by others to mount legal challenges to the acts of the Council.

1.6 However, the Council has not submitted any evidence to show that the relevant opinion was drawn up in the context of any legislative acts to be adopted by the Council, acting either alone or jointly.

1.7 In the course of his inquiry concerning complaint 1015/2002/(PB)IJH, the Ombudsman made a draft recommendation inviting the Council to reconsider its refusal to grant access to an opinion drawn up by its Legal Service. The Council’s detailed opinion in that case informed the Ombudsman that the question of whether and under what conditions opinions of the Council’s Legal Service relating to draft legislative acts were covered by the exceptions laid down in Regulation 1049/2001 was currently the subject of legal proceedings before the Court of First Instance (Case T-84/03, Maurizio Turco v Council)(4). In the Ombudsman’s view, and bearing in mind the fact that the Council has not referred to the existence of any such draft legislative acts in the present case (see 1.6 above), it would thus appear that the Turco case does not concern the same issue of interpretation of Regulation 1049/2001 as had been brought by the complainant.

1.8 As the complainant correctly observed, Regulation 1049/2001 has the aim of ensuring the “widest possible access to documents”. Article 4 (2), second indent of Regulation No 1049/2001 is thus an exception that needs to be interpreted narrowly, taking into account the principle of proportionality. In view of the above considerations, the Ombudsman takes the view that the Council has not provided a satisfactory explanation as to why the relevant opinion cannot be disclosed in its view.

2 Conclusion

In view of the above, the Ombudsman concludes that the Council’s refusal to grant the complainant access to the said document without providing a satisfactory explanation is an instance of maladministration.

The Ombudsman therefore makes the following draft recommendation to the Council, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Council of the European Union should review its decision to refuse the complainant access to Document 10678/99.

The Council and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Council shall send a detailed opinion by 31 July 2004. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 14 April 2004

 

P. Nikiforos DIAMANDOUROS


(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) Decision of the European Ombudsman of 17 September 2003 on complaint 1015/2002/(PB)IJH against the Council.

(3) 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).

(4) 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).