Access to documents: an important victory for transparency in ClientEarth v Council

 

Dimitrios Kyriazis (DPhil, Oxon), Assistant Professor in EU Law at the Law School of the Aristotle University of Thessaloniki.

Photo credit: Bela Geletneky, via Wikimedia Commons

 

In ClientEarth v Council (Joined Cases T-682/21 and T-683/21), the General Court (GC) heard an action for annulment brought by ClientEarth AISBL (and Ms Leino-Sandberg) against a decision by the Council of the EU refusing access to certain documents requested on the basis of the Public Access to Documents Regulation (1049/2001) and the Aarhus Convention Regulation (1367/2006). The GC found against the Council and annulled its decisions refusing access.

This judgment is important for a variety of reasons. First, it sheds light on the proper application of transparency requirements for EU institutions. Second, it does not allow the EU’s legislative process to remain opaque. Third, it reaffirms the correct standards for providing sufficient justifications to EU decisions.

In this post, the background to the dispute is initially set out, as well as the pleas in law raised. Then, the GC’s key dicta are analysed. Finally, the post concludes with an assessment of the ruling’s broader ramifications. 

Background to the dispute and pleas raised

Lodging actions for annulment under Article 263 TFEU, the applicants, ClientEarth AISBL and Ms Päivi Leino-Sandberg, sought annulment of the decisions contained in the letters with reference numbers SGS 21/2869 and SGS 21/2870 of the Council of 9 August 2021, refusing them access in part to document 8721/21. This document was issued by the Council’s legal service and contained its legal opinion on the then proposed amendment of the EU Aarhus Regulation.

To provide some context, Regulation (EC) No 1367/2006 (“Aarhus Regulation”) was adopted by the EU in late 2006 in order to comply with the requirements of the Aarhus Convention, i.e. the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

In March 2017, the Aarhus Convention Compliance Committee (‘the Aarhus Committee’), which was set up in order to verify compliance by the parties to that convention with the obligations arising therefrom, found, inter alia, that the EU was not in compliance with Article 9(3) and (4) of that convention regarding access to justice by members of the public and recommended that the EU Aarhus Regulation be amended. Its two main concerns were as follows. First, the Aarhus Regulation should not be restricted to acts of individual scope with legally binding and external effects adopted under environmental law, but that it had to be extended to all acts running counter to environmental law. Second, the mechanism should not be open only to certain NGOs entitled to make use of it, but must also be open to ‘members of the public’.

In October 2020, the European Commission published a proposal to amend the Aarhus Regulation, and the Aarhus Committee issued advice on the Commission’s proposal stating that, notwithstanding certain concerns that remained to be addressed, the proposal constituted a ‘significant positive development’. In May 2021, the Council’s legal service issued an opinion relating to the Commission’s proposal and the advice of the Aarhus Committee in document 8721/21. This is the document Client Earth requested full access to a few days later. The Council only partly granted their request, giving them access to only certain paragraphs of the document. Client Earth then made confirmatory applications pursuant to Article 7(2) of Regulation No 1049/2001 and in August 2021, the Council adopted the (now challenged) decisions, by which it determined the applicants’ confirmatory applications. While confirming its previous decision to refuse full access to the requested document, the Council granted additional partial access to some more paragraphs of that document.

The applicants brought an action for annulment against said Council decisions refusing them full access. In support of its action, ClientEarth relied on four pleas in law, under which the Council committed several errors of law and a manifest error of assessment.

The first three pleas were based formally on errors of law, while the fourth one was subsidiary in nature. We will follow the order which the GC followed in its judgment, thus examining the second plea first, then the first one, and finally the third one. Only the key legal dicta are repeated and analysed.

Second plea in law (paras 26-87)

The applicants’ second plea in law alleged that the Council committed an error of law and of assessment in applying the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of legal advice. In summary, this provision provides that access to a document is to be refused where disclosure would undermine the protection of legal advice, unless there is an overriding public interest in disclosure of that document. A three-step test has been set out in settled case law in order to apply this exception.

First, the institution concerned, here the Council, must satisfy itself that the document which it is asked to disclose does indeed relate to legal advice and, if so, it must decide which parts of it are actually concerned and may, therefore, be covered by the exception at issue. Second, the institution must examine whether disclosure of the parts of the document in question which have been identified as relating to legal advice would undermine the protection which must be afforded to that advice. The question to be asked here is whether it would be harmful to the institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Finally, even if said institution considers that disclosure of a document would undermine the protection of legal advice, it is incumbent on it to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its interest in seeking legal advice and receiving frank, objective and comprehensive advice would thereby be undermined.

These conditions were examined in turn. The applicants disputed whether the opinion contained legal advice to begin with, but their argument was  swiftly (and rightly) rejected by the GC, which stressed that ‘the analysis of the requested document shows that its content is intended to answer questions of law and, as a result, is covered by the exception relating to the protection of legal advice’ (para 42).

Moving on to the second condition, the applicants had asserted that  the document was not particularly sensitive and did not have a particularly wide scope, so that the Council erred in assessing that its disclosure was liable to undermine the protection that must be afforded to legal advice. More specifically, they submitted that the Council did not establish that there was an actual, specific, reasonably foreseeable and non-hypothetical risk that would result from disclosure of that document, and did also not establish that the document had a particularly wide scope having regard to the legislative context in which it was adopted.

Regarding the sensitive nature of the requested document, the Council had substantiated it by relying on three considerations. The first consideration was the context in which that document had been drawn up and its content; the second was the risk of external pressure if the document was released; and the third, the fact that the issues addressed could be the subject of litigation before the EU Courts.

The GC very systematically and methodically tore down these defences. First, it stressed that the document itself must be particularly sensitive in nature, not, as argued by the Council, the context of which it forms part (para 58). If it comprises only legal assessments that have no originality and does not contain, in addition to those assessments, sensitive information or does not refer to confidential facts, it cannot be considered sensitive in nature (para 59). The Council’s position on this matter was not endorsed by the GC.

The Court next focused on the Council’s assertion that the disclosure of the requested document would expose its legal service to external pressure which could subsequently affect how its advice is drafted and therefore prejudice the possibility of that legal service of expressing its views free from that pressure. The GC was not receptive to such abstract “dangers” either. First, it reiterated settled case law stressing that openness in the legislative process of the EU institutions contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in those institutions by allowing divergences between various points of view to be openly debated (para 64). Therefore, mere statements relying, in a general and abstract way, on the risk of ‘external pressure’ did not suffice to establish that the protection of legal advice would be undermined. This argument was, accordingly, also rejected by the GC.

As regards the Council’s argument that the requested document was particularly sensitive in so far as the issues addressed could be the subject of litigation before the EU Courts, the GC was not particularly sympathetic here either. In essence, the nub of the Council’s argument here was that it would be difficult for the legal service of an institution which had initially expressed a negative opinion regarding a draft legislative act subsequently to defend the lawfulness of that act before the EU Courts, if its opinion had been published. This, prima facie at least, does make sense. However, the GC reminded the Council that it is settled case law that such an argument was too general an argument to justify an exception to the openness provided for by Regulation No 1049/2001 (para 74). More specifically, the Council had not specified exactly how disclosure of the requested document could harm its ability to defend itself in the event of litigation concerning the interpretation or application of the Aarhus Regulation. Furthermore, it was not apparent from the examination of the content of that document that it could be regarded as expressing a negative opinion regarding the Commission’s proposal for amendment of that regulation. Concluding on this matter, the GC stressed (para 76) that the Council’s refusal was vitiated by an error of assessment and, consequently, the first complaint had to be upheld.

The GC then moved on to the second complaint of the applicants, which alleged that, contrary to what the Council had claimed, the scope of the requested document was not particularly wide. The arguments of the Council were twofold. One, the Commission’s proposal entailed the broadening of the scope of the internal review mechanism provided for by the Aarhus Regulation to acts of general application which run counter to environmental law, but the preexisting limitations were based on the similar limitations of standing under Article 263 TFEU. Therefore, in the Council’s view, the analysis contained in the requested document entailed implications which allegedly went beyond the legislative process in question. Two, the Council maintained that the requested document touched upon issues that could affect the Commission’s choices regarding future legislative proposals in the context of the ‘European Green Deal’, which was being drawn up at that time.

The Council was, once again, rapped over the knuckles by the GC, with the latter asserting that the Council did ‘no more than rely on the possible impact of the requested document in relation to future legislative proposals of the Commission in environmental matters, while the Commission’s proposal for amendment of the Aarhus Regulation [was] restricted to those matters alone’ (para 82). Moreover, the GC (very logically) dismanted the argument relating to an analogy with Article 263 TFEU, stating that the Council had not proven that the Commission’s proposal on the Aarhus Regulation entailed consequences on the conditions for the admissibility of actions for annulment brought by legal or natural persons, which are provided for by Article 263 TFEU and cannot be amended other than by revision of the Treaties (para 84). The second complaint was, thus, also upheld, and the applicant’s second plea in law was upheld in its entirety (para 87). The GC then went on to briefly examine their first plea in law.

First plea in law (paras 88-103)

The applicants’ first plea in law alleged that the Council committed an error of law and of assessment in applying the exception provided for in Article 4(3) of Regulation No 1049/2001 relating to the protection of the decision-making process. Under the first subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document, drawn up by an institution for internal use, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

The applicants argued that, since on the date on which the contested decisions were adopted, the Council had already adopted its position on the Commission’s proposal and, moreover, the provisional agreement had already been concluded, there was no longer an ongoing decision-making process which disclosure of the requested document could have seriously undermined.

The GC reminded both parties of the ratio underpinning the relevant provision of Regulation No 1049/2001: it is intended to ensure that those institutions are able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted (para 93). However, said provision may no longer be relied on in respect of a procedure closed on the date on which the request for access was made (para 96). In practice, as the GC very pragmatically observed, agreements reached in the course of trilogues are subsequently adopted by the co-legislators without substantial amendment. This meant that it was appropriate to consider that the decision-making process of which the adoption of the requested document formed part was closed at the date on which the Council approved the provisional agreement (para 99). Therefore, the Couuncil’s reliance on this provision of the Regulation in order to refuse disclosure was also vitiated by an error of law (par 101).

Third plea in law (paras 104-120)

The applicants’ third plea in law, i.e. the final plea examined by the GC, alleged that the Council committed an error of law and a manifest error of assessment in applying the exception provided for in the third indent of Article 4(1)(a) of Regulation No 1049/2001 relating to the protection of the public interest as regards international relations (for this point in particular, see this excellent piece by Peter and Ankersmit). The applicants submitted that there was no risk that international relations would be undermined and that the exception based on the protection of international relations was inapplicable, given that the requested document is purely legal in nature.

The Council, to justify the application of the exception relating to the protection of international relations within the meaning of the third indent of Article 4(1)(a) of Regulation No 1049/2001, had argued that the full disclosure of the requested document would amount to revealing considerations relating to the ‘legal feasibility of solutions that the European Union could implement to address the alleged non-compliance with the Aarhus Convention’. The Council also stressed that the risk that the public interest would be undermined as far as international relations were concerned was reasonably foreseeable and not purely hypothetical, in so far as the question whether the Aarhus Regulation complied with the Aarhus Convention was to be examined during an upcoming meeting of the parties concerned in 2021. Thus, the requested documents could be used by other parties to the Aarhus Convention during discussions during the meeting of the parties, which could weaken the position that the European Union might have intended to take in that institutional context.

The GC’s strict approach to such assertions will by now be familiar to the reader. The GC noted (para 112) that the existence of a mere link between the elements contained in a document (which is the subject of an application for access) and the objectives pursued by the European Union in the negotiation and implementation of an international agreement is not sufficient to establish that disclosure of those elements would undermine the public interest protected as regards international relations. Even more crucially, the GC noted, the adoption of an act of secondary EU legislation necessarily implies legal analyses from each institution participating in the legislative procedure, which entails a risk of divergences of legal assessment or interpretation. But this is an integral part of any legislative procedure and such divergences are therefore liable to be explained to non-member countries or international organisations in an international body such as the meeting of the parties to the Aarhus Convention, without necessarily weakening the European Union’s position resulting from the final version of the act ultimately adopted (para 114). Consequently, the Council failed to provide sufficient explanations as to the specific, actual, reasonably foreseeable and non-hypothetical risk on which it relied regarding the international relations of the European Union and the other parties to the Aarhus Convention (para 118).

The applicants’ fourth plea in law, raised in the alternative, alleged infringement of Article 4(6) of Regulation No 1049/2001, in that the Council had failed to grant the applicant wider access to the requested document. This plea was not even examined by the GC, since it had already found that the decisions had to be annulled, without there there being any need to examine the (subsidiary) fourth plea (para 120).

Broader Ramifications and Conclusion

This very detailed and well-substantiated ruling by the GC is significant for a number of reasons. Firstly, it sheds light on the exact conditions that need to be fulfilled for access to documents to be validly refused. Secondly, it reiterates, and clarifies, that any “risk” on which an EU institution might wish to rely to refuse disclosure has to be specific, actual, reasonably foreseeable and non-hypothetical. Thirdly, it demonstrates the pragmatic way in which the EU Courts understand the everyday reality of EU rulemaking.

Most importantly, the ruling is important as a matter of principle. Even when the political stakes are high, EU Courts will side with transparency. The quote “sunlight is said to be the best of disinfectants” by Brandeis echoes in Luxembourg just as it did before the US Supreme Court.