The General Court clarifies that despite the fundamental importance of transparency and publicity of legislative procedures, EU law does not provide for an unconditional right of access to legislative documents (case T-163/21).
On 25 January 2023, the General Court annulled a decision of the EU Council refusing access to documents concerning an ongoing legislative procedure (case T-163/21). The General Court’s ruling is interesting in that it provides clarification regarding the applicability of the exception relating to the protection of the decision-making process to documents drafted by a Council’s working group in the context of a legislative procedure.
On 15 October 2020, Mr De Capitani requested access, on the basis of Regulation No 1049/2001, to certain documents exchanged within the Council’s ‘Company Law’ working group relating to the legislative procedure concerning the amendment of Directive No 2013/34 on the annual financial statements (also known as the “Accounting Directive”).
The Council refused to grant access to the documents at issue on the ground that such access would seriously undermine the protection of the decision-making process. The applicant challenged the Council’s decision before the General Court arguing that the Council failed to state reasons as to (i) whether disclosure of the documents at issue would seriously undermine the decision-making process and (ii) regarding the absence of an overriding public interest justifying disclosure of those documents.
The applicant’s continuing interest in bringing proceedings
Before assessing the merits of the case, the General Court examined the interest of the applicant in bringing proceedings. In the present case, the Council disclosed to the applicant all the documents at issue by letter of 14 June 2021 (i.e. after the action for annulment was brought before the General Court). The General Court ruled that, despite the documents’ disclosure, the applicant’s interest in bringing proceedings hasn’t ceased to exist. Indeed, according to the General Court, the applicant did not obtain in good time full satisfaction having regard to the objectives he pursued (namely, to be able to ascertain the positions expressed by the Member States within the Council about the legislative proposal, to inform the public of those positions and ultimately generate a debate thereto).
No serious undermining of the decision-making process
The General Court firstly assessed the merits of the main argument developed by the applicant that Article 4(3) of Regulation No 1049/2001, providing for an exception relating to the protection of the decision-making process, does not apply to legislative documents. For the applicant, the principles of transparency, publicity and openness of legislative procedures enshrined in the TFEU and the Charter hinder the applicability of the above-mentioned exception to the legislative documents at issue.
The General Court rejected the applicant’s argument and confirmed that the right of access to documents, including legislative documents, enshrined in Article 42 of the Charter, is not absolute. In accordance with Article 15(3) of the TFEU, the right of access to legislative documents is exercised according to the general principles, limits and terms provided by Regulation No 1049/2001 on public access to documents. Therefore, the General Court concluded that the exception to the obligation to disclose a requested document relating to the protection of the decision-making process of the institution concerned remained applicable following the entry into force of the TFEU and the Charter.
The General Court therefore ruled that the provisions of the Treaties and of the Charter cannot be interpreted as excluding, as a matter of principle, the possibility to refuse access to legislative documents on the ground that their disclosure would seriously undermine the Council’s decision making-process.
Despite the applicability of the exception to the requested legislative documents, the General Court ruled that the exception could not be relied on by the Council since the latter did not explain how the disclosure of the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the legislative process. For instance, the risk of external pressure invoked by the Council was rejected by the General Court insofar as the Council did not sufficiently establish how disclosure would substantially affect the decision-making process at issue. The mere public reaction or public debate as a result of the disclosure of the documents is not sufficient to seriously undermine the decision-making process. Moreover, the principle of democratic legitimacy involves that co-legislators must be answerable for their actions to the public.
Please contact Pierre de Bandt or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to EU litigation and procedure.