Strasbourg, 14 December 2004

Dear Mr F.,

On 12 December 2003, you made a complaint to the European Ombudsman concerning the refusal of the Council of the European Union to grant you access to Council document no 10678/99.

On 18 December 2003, I forwarded the complaint to the Secretary General of the Council. The Council sent its opinion on 12 February 2004. I forwarded it to you on 19 February 2004 with an invitation to make observations, which you sent on 29 March 2004.

On 14 April 2004, I addressed a draft recommendation to the Council. The Council sent its detailed opinion on 8 June 2004. I forwarded it to you on 16 June 2004 with an invitation to make observations, which you sent on 28 July 2004.

On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council).

On 2 December 2004, I forwarded a copy of this judgment to you, inviting you to make observations on its possible importance for the present complaint.

On the occasion of a telephone conversation with my services on 7 December 2004, you pointed out that you did not wish to make such observations.

I am writing now to let you know the results of the inquiries that have been made.

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(1), 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, i.e. the Council's interest 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 OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 14 April 2004, the Ombudsman addressed the following draft recommendation to the Council:

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

The Council's detailed opinion

In its detailed opinion, the Council made the following comments:

Article 4 of Regulation 1049/2001 had to be interpreted restrictively. However, this did not mean that exceptions were to be interpreted so as to empty them of all substance, as the Ombudsman's draft recommendation appeared to do.

The draft recommendation seemed to follow the logic that legal advice provided by the Legal Service was either given in the context of possible future court proceedings or constituted opinions on draft legislation. This division of legal advice into different categories was not supported by law, was artificial and ignored the purpose of such advice.

Regulation 1049/2001 at no point distinguished legislative legal advice from other Council documents. Nor was such a distinction known in the Courts' case-law. Legislation was but one of the tasks of the Council. Much of the Council's work consisted of the framing and execution of policy, which included the adoption of acts having legal effects without being "legislation", or the application or implementation of EU law. The Legal Service could be called upon to express an opinion on the legal consequences of the Council's proposed actions as well as on the interpretation of Member States' obligations vis-à-vis the Council (as was the case here). As the President of the Court of First Instance had held(2), were opinions of the Legal Service to be disclosed, "the discussions and exchange of views within the institution on the legality and scope of the measure to be adopted would be made public and hence...the Council might lose all interest in requesting the Legal Services for written opinions. In other words, it appears, at least on an initial examination, that disclosure of those documents could give rise to uncertainty with regard to the legality of Community measures and have a negative effect on the functioning of the Community institutions. The stability of the Community legal order and the proper functioning of the institution, which are matters of public interest for which it is unquestionably necessary to have due regard, would suffer as a result." The logic behind this dictum was not limited to those instances where the Council acted as legislator dealing with a specific text, but spanned the total of its activities.

It followed that the artificial distinction of legal advice into different categories was incorrect and that the general question as to what extent such advice fell under the scope of Article 4 (2) of the Regulation also applied to the case at hand. The Ombudsman should therefore defer a decision on this matter until the Court of First Instance had ruled on the Turco case.

The application of Article 4 (2) of the Regulation did not imply an infringement of Article 13 of the Charter on Fundamental Rights.

The complainant's observations

In his observations, the complainant maintained his complainant and asked the Ombudsman to decide on it as soon as possible.

The judgment of 23 November 2004

On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council). In this judgment, the Court arrived at the conclusion that the Council was entitled to refuse access to legal opinions drawn up by its Legal Service (cf. in particular paragraph 62 and 74 of the judgment).

The complainant's observations

On 2 December 2004, the Ombudsman forwarded a copy of this judgment to the complainant, inviting him to make observations on its possible importance for the present complaint. On the occasion of a telephone conversation with the Ombudsman's services on 7 December 2004, the complainant pointed out that he did not wish to make such observations.

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 On 14 April 2004, the Ombudsman addressed a draft recommendation to the Council, asking it to review its decision to refuse the complainant access to Document 10678/99. This draft recommendation was based on the approach adopted by the Ombudsman in his special report to Parliament (see 1.4 above) The Ombudsman noted that the Council had not argued that the legal opinion to which the complainant sought access had been drawn up in the context of possible future court proceedings. He also noted that the Council had 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.

1.6 In its detailed opinion, the Council accepted that Article 4 of Regulation 1049/2001 had to be interpreted restrictively. The Council argued, however, that this did not mean that exceptions were to be interpreted so as to empty them of all substance, as the Ombudsman's draft recommendation appeared to do. According to the Council, the division of legal advice into different categories that had been suggested by the Ombudsman was not supported by law, was artificial and ignored the purpose of such advice. The Council submitted that the general question as to what extent such advice fell under the scope of Article 4 (2) of the Regulation also applied to the case at hand. The Ombudsman should therefore defer a decision on this matter until the Court of First Instance had ruled on the Turco case.

1.7 On 23 November 2004, the Court of First Instance rendered its judgment in Case T-84/03 (Turco v Council). In this judgment, the Court arrived at the conclusion that the Council was entitled to refuse access to legal opinions drawn up by its Legal Service (cf. in particular paragraph 62 and 74 of the judgment). On 2 December 2004, the Ombudsman forwarded a copy of this judgment to the complainant, inviting him to make observations on its possible importance for the present complaint. On the occasion of a telephone conversation with the Ombudsman's services on 7 December 2004, the complainant pointed out that he did not wish to make such observations.

1.8 In the light of the judgment of the Court of First Instance, there appears to be no maladministration. It should be recalled, however, that the Court of Justice of the European Communities is the highest authority regarding the interpretation of Community law.

2 Conclusion

On the basis of the Ombudsman's inquiries into the present complaint, there appears to have been no maladministration by the Council. The Ombudsman therefore closes the case.

The Secretary General of the Council will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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

(2) In his Order of 3 March 1998 in Case T-610/97 R Carlsen a.o. v Council [1998] ECR II-485, pargaraphs 45-47.

(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).