Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

15 September 2016 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to discussions preceding the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of legal advice — Rights of the defence — Overriding public interest)

In Case T‑755/14,

Herbert Smith Freehills LLP, established in London (United Kingdom), represented by P. Wytinck, lawyer,

applicant,

v

European Commission, represented by P. Van Nuffel, J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,

defendant,

supported by

Council of the European Union, represented by E. Rebasti, J. Herrmann and M. Veiga, acting as Agents,

intervener,

APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision Gestdem 2014/2070 of 24 September 2014 refusing access to certain documents relating to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1),

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        By email of 16 April 2014, the applicant, Herbert Smith Freehills LLP, submitted an initial application to the European Commission, on the basis of 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), for access to ‘any document (including internal documents and drafts) authored by officials [of] the Commission’s Legal Service that relate to the Legal Service’s assessment of the legal basis of proposals for a new Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products ... and that were drafted in preparation for, in response to, in consequence of, or that otherwise refer to, trilogue meetings relating to [that directive] in 2013’. It also indicated that, ‘as part of the Commission’s Legal Service’s response to this request, [it expected] to receive (at least) documents (including internal documents and drafts) relating to the Legal Service’s review or consideration of Article 24 of the proposed [directive]’.

2        By emails of 14 May and 6 June 2014, the Commission’s Legal Service sent the applicant holding replies.

3        By email of 16 June 2014, the applicant submitted a confirmatory application for access to the documents listed in its initial application.

4        By email of 8 July 2014, the Commission partially rejected the initial application. It is apparent from the Commission’s response that its Legal Service identified 12 emails and one attachment as being the subject of the request for access. Those documents were emails sent by a member of the Commission’s Legal Service to officials of the Commission’s Directorate-General (DG) for ‘Health and Consumers’ (‘DG SANCO’) and members of the Legal Services of the Council of the European Union and of the European Parliament between 22 November and 12 December 2013, a period during which discussions took place between the institutions in the context of informal trilogue meetings regarding the proposed Directive of the Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products (‘the TPD’).

5        Full access was granted to six documents (Documents Nos 2, 3, 6, 8, 10 and 12), with the personal data falling under the exception laid down in Article 4(1)(b) of Regulation No 1049/2001 redacted, and partial access was granted to Document No 7.

6        Access to the other six documents was refused on the basis of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001.

7        The documents in respect of which access was refused are as follows (‘the requested documents’):

–        Document No 1: Commission internal email of 22 November 2013, mentioning as its subject ‘TPD scope of application’ and sent by the Commission’s Legal Service to DG SANCO;

–        Document No 3.1: attachment to the Commission’s internal email of 26 November 2013, that attachment being a provisional version of Article 24 of the TPD with revision notes by the Commission’s Legal Service;

–        Document No 4: inter-institutional email of 2 December 2013, mentioning as its subject ‘additional requirements/more stringent provision’ and sent by the Commission’s Legal Service to the Legal Services of the Council and of the Parliament;

–        Document No 5: email of 2 December 2013, mentioning as its subject ‘Art. 24 Dec 2013 1.doc’ and sent by the Commission’s Legal Service to the Legal Services of the Council and of the Parliament;

–        Document No 7: email of 6 December 2013, mentioning as its subject ‘RE: revised Art. 24 — after today’s discussions’ and sent by the Commission’s Legal Service to DG SANCO and the Council’s Legal Service;

–        Document No 9: Commission internal email of 10 December 2013, mentioning as its subject ‘recital on packaging’ and sent by the Commission’s Legal Service to DG SANCO;

–        Document No 11: Commission internal email of 12 December 2013, mentioning as its subject ‘Article 24’ and sent by the Commission’s Legal Service to DG SANCO.

8        On 15 July 2014, the applicant submitted a further confirmatory application.

9        By emails of 6 and 28 August 2014, the Commission extended the period for processing the confirmatory application.

10      On 24 September 2014, the Commission adopted a decision in response to the confirmatory application (‘the contested decision’), in which it confirmed its refusal to grant wider access to the requested documents, considering that such access would undermine the protection of court proceedings and legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001.

11      The Commission explained that disclosure of the requested documents would make publicly accessible internal opinions on particularly sensitive issues which had become the subject of litigation, opinions that had been drawn up under the responsibility of its Legal Service and were intended for the service of the Commission responsible for preparing the TPD. According to the Commission, the likelihood that the protected interest would be compromised was not hypothetical, but genuine and tangible. In that regard, it referred to:

–        the action brought by the Republic of Poland against the Parliament and the Council (a case which has since given rise to the judgment of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323));

–        the fact that the adoption of the TPD had been strongly opposed by the tobacco industry and that questions referred for a preliminary ruling concerning the validity of that directive and the measures taken by the Member States in transposing that directive into their national law were expected in the near future, as had been the case with the first Tobacco Products Directive;

–        the fact that another tobacco producer, Philip Morris, had confirmed that it had brought an action before the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom), against the TPD, which would mean that, in all likelihood, the Court of Justice of the European Union would have to be informed of the case by way of a reference for a preliminary ruling;

–        the disputes pending before the World Trade Organisation (WTO) concerning measures taken regarding tobacco by the Commonwealth of Australia following complaints made by the Republic of Cuba, the Dominican Republic, the Republic of Honduras, the Republic of Indonesia and the Ukraine, in which the European Union was intervening as an interested party.

12      As a result, according to the Commission, disclosure of the requested documents would compromise the ability of the Commission’s Legal Service to defend the validity of the TPD effectively before the courts on an equal footing with the other parties, which would lead to an infringement of the principle of equality of arms. That disclosure could actually jeopardise the Commission’s freedom to define or adapt its line of defence during court proceedings, in so far as it would reveal the Legal Service’s position on those sensitive issues before it had even had the opportunity to present that position during the court proceedings.

13      Next, the Commission ruled out the existence of an overriding public interest in disclosure. While recognising the importance of transparency in order to enable citizens to participate in the democratic process and the presumption of openness as regards documents concerning a legislative process, the Commission nonetheless considered, having regard to the content of the requested documents, that, in the present case, transparency did not outweigh the importance of protecting its legal advice and its rights of the defence.

14      According to the Commission, ‘releasing [Documents Nos] 1, 3.1, 4, 5, 9 and 11 and the redacted parts of [Document No ]7 at present would undermine [its] ability to seek legal advice and breach the principle of ... equality of arms in the pending court proceedings’. The Commission added that the power to review the legality of a legislative act of the European Union was exercised by the Court of Justice of the European Union and not by the general public.

 Procedure and forms of order sought

15      By application lodged at the Registry of the General Court on 14 November 2014, the applicant brought the present action, together with an application for priority treatment.

16      On 11 February 2015, the Commission submitted its defence.

17      By decision of 3 March 2015, the President of the Eighth Chamber of the General Court rejected the application for priority treatment.

18      By document lodged at the Court Registry on 6 March 2015, the Council sought leave to intervene in the present case in support of the form of order sought by the Commission.

19      The reply was lodged at the Court Registry on 16 April 2015.

20      The rejoinder was received at the Court Registry on 1 June 2015.

21      By order of 11 November 2015, the Court ordered the Commission to produce copies of the requested documents, pursuant to Article 91(c) of the Rules of Procedure of the General Court, and stated that, pursuant to Article 104 of those Rules, those documents were not to be communicated to the applicant. The Commission complied with that order within the prescribed period.

22      By decision of 24 November 2015, the President of the Eighth Chamber of the General Court granted the Council leave to intervene.

23      On 8 January 2016, the Council lodged its statement in intervention.

24      The applicant’s observations regarding the statement in intervention were submitted on 1 March 2016.

25      On 1 March 2016, the Court Registry notified the parties of the closure of the written part of the procedure. No application for a hearing was submitted by the parties within the period laid down in Article 106(2) of the Rules of Procedure.

26      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

27      The Commission and the Council contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

28      In support of the action, the applicant raises a single plea in law, alleging infringement of Article 4(2) of Regulation No 1049/2001, a single plea which is based on the following arguments:

–        the exception relating to court proceedings does not apply to the documents in question;

–        the exception relating to legal advice laid down in Article 4(2) of Regulation No 1049/2001 does not extend to communications with third parties in the context of a legislative discussion;

–        there is an overriding public interest justifying disclosure of the undisclosed documents and, in the alternative, there is an overriding public interest justifying disclosure of Document No 3.1.

 Preliminary observations

29      It should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ‘ever closer union among the peoples of Europe’, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 of that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 68; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 72).

30      To that end, the purpose of Regulation No 1049/2001, as indicated in recital 4 and Article 1 thereof, is to give the public a right of access to documents of the institutions that is as wide as possible (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 69; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 73).

31      It is true that that right is nonetheless subject to certain limitations based on grounds of public or private interest. More specifically, and in accordance with recital 11 thereof, Article 4 of Regulation No 1049/2001 lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 70 and 71; 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 74; and 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29).

32      Nevertheless, since such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 36; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 73; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).

33      The mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that exception (judgments of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51, and 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69).

34      First, if the institution concerned decides to refuse access to a document that it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually compromise the interest protected by the exception, among those provided for in Article 4 of Regulation No 1049/2001, upon which it relies. Moreover, the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).

35      Second, if an institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming, as noted in recital 2 of Regulation No 1049/2001, from increased openness, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45; 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32; and 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53).

36      In the present case, it must be pointed out that the applicant is contesting the idea that the requested documents fall under the two exceptions laid down in the second indent of Article 4(2) of Regulation No 1049/2001, which concerns the protection of court proceedings and legal advice. Regarding the alleged applicability of the exception laid down in respect of court proceedings, the applicant argues that the requested documents were drafted not for the purposes of a specific court procedure, but in the context of trilogue negotiations relating to the adoption of the TPD. Regarding the alleged applicability of the exception laid down in respect of legal advice, it argues that that exception does not extend to emails exchanged by the Commission’s Legal Service with correspondents from other institutions in the context of legislative procedures. The applicant submits that when officials act as negotiators in the legislative process, they cannot be regarded as legal advisers and thus as providers of legal advice. According to the applicant, in order for the exception relating to legal advice to apply, legal advice must have been provided to the institution that relies upon that exception. Lastly and in any event, the applicant submits that there is an overriding public interest justifying disclosure of the legal advice in question.

37      The Court considers it useful to begin by examining the exception relating to legal advice and thus, in the first place, to examine the question whether Documents Nos 4, 5 and 7 fall under that exception and, in the second place, to examine whether there exists, for all the requested documents, an overriding public interest in their disclosure, before examining the argument concerning the exception relating to the protection of court proceedings.

 Whether the exception relating to legal advice extends to Documents Nos 4, 5 and 7

38      The applicant claims, in essence, as has already been summarised in paragraph 36 above, that the exception relating to the protection of legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 applies only to advice provided internally by the Legal Service of the institution in question and not to a legal opinion provided by the Legal Service of one institution to another institution. For that reason, Documents Nos 4, 5 and 7, that is, the emails sent to the Legal Services of the Council and of the Parliament and, as regards Document No 7, to DG SANCO, cannot fall under the exception relating to legal advice.

39      The Commission, supported by the Council, contests the applicant’s assertion that Documents Nos 4, 5 and 7 cannot be covered by the exception relating to legal advice on the ground that, in drafting those documents, the members of the respective Legal Services were acting in the capacity of legislative negotiators and not as internal advisers.

40      The second indent of Article 4(2) of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where disclosure would undermine the protection of legal advice, unless there is an overriding public interest in disclosure of that document.

41      It should be borne in mind that, according to the case-law of the Court, as regards the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the examination to be undertaken by the institution concerned when it is asked to disclose a document must necessarily be carried out in three stages corresponding to the three criteria in that provision (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 37, and 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 95).

42      Accordingly, that institution must first be satisfied that the document it is being asked to disclose does indeed relate to legal advice. Second, it must examine whether disclosure of the parts of the document in question that have been identified as relating to legal advice would undermine the protection that must be afforded to that advice, in the sense that it would be harmful to an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The likelihood of that interest being compromised must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Third and lastly, if the institution concerned takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on that institution to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would be compromised thereby (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 38 to 44, and 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 96).

43      The Court has also held that, in so far as the interest in protecting the independence of that institution’s Legal Service could be compromised by disclosure of opinions of that Legal Service issued in the course of legislative procedures, that likelihood would have to be weighed up against the overriding public interests underlying Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s Legal Service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of that regulation. It is apparent from the considerations mentioned above that Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s Legal Service relating to a legislative process (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 67 and 68).

44      That finding does not, however, preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 69).

45      As can be seen from paragraph 38 above, the applicant is calling in question the idea that Documents Nos 4, 5 and 7 would fall under the exception relating to legal advice.

46      As regards the concept of ‘legal advice’, it should be noted that Article 4 of Regulation No 1049/2001 provides no basis for the interpretation of that concept given by the applicant.

47      In the first place, it should be pointed out that the concept of ‘legal advice’ is not defined in Regulation No 1049/2001. However, it is apparent from the case-law deriving from the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 38 and 39), that the concept of ‘legal advice’ relates to the content of a document and not to its author or its addressees. As is apparent from a literal interpretation of the words ‘legal advice’, this is a question of advice relating to a legal issue, regardless of the way in which that advice is given. In other words, it is irrelevant, for the purposes of applying the exception relating to the protection of legal advice, whether the document containing that advice was provided at an early, late or final stage of the decision-making process. In the same way, the fact of the advice having been given in a formal or informal context has no effect on the interpretation of that concept.

48      In the second place, there is nothing in the wording of the second indent of Article 4(2) of Regulation No 1049/2001 to support the conclusion that that provision concerns only advice provided or received internally by an institution.

49      In that regard, it should be borne in mind that it is apparent from the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 42), that the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice.

50      Although, as a general rule, an institution seeks advice from its own Legal Service, there is nothing to prevent that institution, where appropriate, from outsourcing its request for that advice. That is the case, for example, where the institution in question seeks advice from a law firm.

51      Accordingly, the question whether the legal advice emanates from an internal or external author is irrelevant so far as the institution relying on the exception relating to the protection of advice is concerned.

52      Nor, lastly, is there anything to prevent the institution which has invoked the exception relating to the protection of legal advice from sharing that advice with ‘a third party’. The fact that a document containing legal advice issued by an institution has been sent to the Legal Services of other institutions does not alter, as such, the nature of that document.

53      Accordingly, contrary to the applicant’s assertions, it does not follow from the second indent of Article 4(2) of Regulation No 1049/2001 that a document containing legal advice must be issued by an institution for internal use only.

54      In that regard, it should be emphasised that, in the present case, as was argued by the Commission and as the Court found following the production of the documents in connection with the measure of organisation of procedure referred to in paragraph 21 above, this is a question of an exchange between the three institutions in the context of a trilogue, which, by definition, involves exchanges carried out ‘outside’ the institution concerned in order to adopt a final legislative text.

55      A trilogue is an informal tripartite meeting in which the representatives of the Parliament, the Council and the Commission take part. The aim of such exchanges is to reach a prompt agreement on a set of amendments acceptable to the Parliament and the Council. Although the legislative discussions conducted during a trilogue often concern political issues, they may also sometimes concern technical legal issues. In the latter case, on occasion, the Legal Services of the three institutions must discuss and agree on a position, an agreement that must subsequently be approved by each of the three institutions in accordance with their respective internal procedures.

56      Thus, the ordinary legislative procedure set out in Article 294 TFEU, the procedure pursuant to which the TPD was adopted, comprises three stages (first reading, second reading and third reading with conciliation), but it may be concluded after any one of those stages if the Parliament and the Council come to an agreement. Although the procedure may require up to three readings, the increased use of trilogues shows that an agreement is often reached during the first reading.

57      In the present case, the TPD was adopted on the basis of a first reading by the Parliament. In view of the ending of the respective terms of office of the Parliament and of the Commission in June and October 2014, trilogue negotiations were conducted between the Parliament, the Council and the Commission at the Parliament’s request in order to negotiate, inter alia, the content of Article 24 of the TPD and to agree on the wording of that provision.

58      The exchanging of legal views between the Legal Services of three institutions in order to reach a compromise regarding a legislative text in the context of a trilogue may, where appropriate, be described as legal advice and, as a result, may fall under the exception relating to legal advice.

59      The Legal Services act under a mandate and with the aim of reaching an agreement. They thus simultaneously act as negotiators and advisers with regard to legal matters.

60      It follows from the foregoing that the Commission correctly took the view that the documents at issue concerned legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001.

 Whether there exists an overriding public interest justifying disclosure of the requested documents or, in the alternative, an overriding public interest justifying disclosure of Document No 3.1

61      The applicant argues that even if all the undisclosed documents were to fall within the scope of the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of legal advice, they would still have to be disclosed.

62      Referring to the case which gave rise to the judgment in Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374), the applicant argues that there is clearly an overriding public interest justifying disclosure of the documents in question. The requested documents were drawn up in the context of a legislative procedure and pertain to the issue of the legal basis of the TPD, which is connected with the principle of conferral, a principle affirmed in Article 5 TEU and constituting an essential element of the constitutional order of the European Union. The applicant also emphasises the fact that the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), has referred a question to the Court of Justice of the European Union relating to the interpretation of Article 24 of the TPD. That fact also indicates that an overriding public interest exists.

63      In addition, according to the applicant, the contested decision identifies no factor allowing the overriding public interest in disclosure of the requested documents to be called into question. The Commission’s argument highlighting factors connected with its rights of the defence is not convincing. In the first place, the Commission will not be a defendant in any court proceedings, for that is the role of the Parliament and of the Council. In the second place, the applicant remarks that it is well known that there was disagreement within the Commission and debate amongst the institutions concerning the legal basis and issues relating to Article 24 of the TPD. As a result, any potential need of protection must be regarded as being considerably reduced and, therefore, incapable of prevailing over the substantial and well-established public interest in disclosure of legal advice relating to legislative acts.

64      In the alternative, the applicant argues that, in the event of the Court finding that there is no overriding public interest in disclosure of all the documents, at the very least, disclosure of Document No 3.1, a document which contains a provisional version of Article 24 of the TPD with revision notes added by an official of the Commission’s Legal Service, is required. According to the applicant, provisional versions of texts such as Document No 3.1 are a natural part of legislative debate and there is necessarily an overriding public interest in disclosure of those documents.

65      The Commission, supported by the Council, contests the applicant’s arguments.

66      As a preliminary point, it should be noted that the applicant has not challenged the Commission’s analysis as regards the existence of a reasonably foreseeable likelihood that disclosure of the requested documents would compromise the interest in seeking legal advice and receiving frank, objective and comprehensive advice. Indeed, it has merely observed that the arguments relied on by the Commission in order to refuse to disclose the documents in question were of a general nature and argued that a likelihood of that interest being compromised (assuming there was such a likelihood) was not sufficient to call into question the overriding interest justifying such disclosure. The applicant is thus criticising the way in which the Commission weighed up the interests in question.

67      To the extent that disclosure of legal advice would be likely to compromise the protected interest, that likelihood should be weighed up against the overriding interests underlying Regulation No 1049/2001. As can be seen from the case-law cited in paragraph 35 above, it is for the institution concerned to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming, as noted in recital 2 of Regulation No 1049/2001, from increased openness, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

68      An overriding public interest capable of justifying disclosure of a document need not necessarily be distinct from the principles underlying Regulation No 1049/2001 (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 74 and 75, and 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 92).

69      Although it is for the institution concerned to weigh up the different interests, it is for the applicant to refer to specific circumstances that establish such an overriding public interest. A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 158; 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93; 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 105; and 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 131).

70      The requirement that an applicant for access refer to specific circumstances showing that there is an overriding public interest in disclosure of the documents concerned is consistent with the case-law of the Court of Justice (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 95 and the case-law cited).

71      In the present case, as is apparent from paragraph 3 of the contested decision, summarised in paragraphs 13 and 14 above, the Commission considered that there was no overriding public interest.

72      None of the arguments put forward by the applicant, whether in the confirmatory application or in the application in the present case, allows that assessment to be called into question.

73      It is true that, in the judgment in Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374), the Court found that there was, in principle, an obligation to disclose the opinions of the Legal Service relating to a legislative process even if that disclosure could undermine the protection of legal advice. However, the fact remains that Regulation No 1049/2001, as interpreted by the Court, does not preclude a refusal to disclose a legal opinion given in the context of a specific legislative process. Consequently, a mere assertion that the legal advice in question was drawn up in the context of a legislative process is not in itself sufficient to establish an overriding public interest.

74      Regarding the argument that the requested documents pertain to the issue of the legal basis of the TPD, an issue connected with the principle of conferral affirmed in Article 5 TEU, and that there is, as a result, an overriding public interest in knowing the way in which the legislative bodies of the European Union apply that principle, it must be held that, in the light of the case-law cited in paragraph 69 above, such a general consideration cannot provide an appropriate basis for establishing that, in the present case, the principle of transparency is of especially pressing concern and could thus prevail over the reasons justifying the refusals to grant access to the requested documents (see, to that effect and by analogy, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 157 and 158).

75      In so far as the applicant claims that it applied for access to the requested documents in order better to understand why Article 24 of the TPD had undergone certain changes during the legislative process and with the intention of using those documents in the action it had brought before the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), an action in which the applicant was contesting the validity of the TPD on the ground that Article 114 TFEU does not provide an adequate legal basis because, inter alia, Article 24 of the TPD undermines the free movement of products complying with the TPD, it must be pointed out that that fact does not establish the existence of an overriding public interest, but rather the existence of a private interest.

76      The applicant’s argument based on the fact that the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), has referred a question in the meantime to the Court of Justice of the European Union relating to the interpretation of Article 24 of the TPD in the light of Article 114 TFEU in order to establish the existence of an overriding public interest cannot succeed either. It is true that the issue of whether the TPD is lawful is important for the public of the European Union. However, the fact that the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), has requested a preliminary ruling pursuant to Article 267 TFEU concerning the interpretation and the validity of certain provisions of the TPD also means that, at this stage, that debate must take place first and foremost before the Court of Justice of the European Union, the only Court having jurisdiction to review the legality of legislative acts of the European Union.

77      As regards the applicant’s argument that the Commission has no rights of the defence to protect, since it will not be the defendant in a dispute before the Court of Justice of the European Union, it should be noted that the Commission has an interest in ascertaining that any act adopted on the basis of one of its proposals is lawful and that it will therefore, as a rule, intervene in proceedings concerning the validity of an act of the European Union, in accordance with its institutional mandate as affirmed in Article 17 TEU. Consequently, that argument cannot succeed.

78      Lastly, regarding Document No 3.1, it must be found that the applicant has not referred to specific circumstances to show that there is an overriding public interest in disclosure of that document either.

79      In the light of the foregoing, the assertion that the Commission should have recognised the existence of an overriding interest justifying disclosure of the requested documents must be rejected.

80      Given that the Commission based its refusal on two exceptions and that its reliance on the exception relating to the protection of legal advice is justified for all the requested documents, all of which contain legal advice, it is not necessary to give a ruling on the exception relating to the protection of court proceedings, the line of argument put forward by the applicant in that regard being ineffective.

81      It follows that the action must be dismissed.

 Costs

82      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

83      Under Article 138(1) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Accordingly, the Council must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Herbert Smith Freehills LLP to bear its own costs and to pay those incurred by the European Commission;

3.      Orders the Council of the European Union to bear its own costs.

Delivered in open court in Luxembourg on 15 September 2016.

[Signatures]

* Language of the case: English.

© European Union
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