Case Summary and Outcome

The European Court of Justice (ECJ) found that a legal opinion given to the Council concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure. Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents pertaining to a directive which laid down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the grounds that it deserved special protection so as not to create uncertainty regarding the legality of the measure. The Court stated that openness grants legitimacy to the institutions and increases the confidence of EU citizens towards these institutions while the lack of debate and information may produce doubts in respect of the legitimacy of the whole decision-making process.

This analysis was contributed by Right2Info.org.

Facts

In October 2002, Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents appearing on the agenda of the Justice and Home Affairs Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the document.

The Council refused to disclose the legal opinion on the ground that it deserved special protection so as not to create uncertainty regarding the legality of the measure adopted further to that opinion.

Mr Turco challenged the Council’s refusal before the Court of First Instance which upheld the Council decision. In its judgment, in Case T-84/03 Turco v Council, the Court of First Instance ruled that disclosure of legal opinions such as the one requested could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service. It held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.

Mr. Turco appealed to the Grand Chamber and the President of the Court joined his appeal with the Kingdom of Sweden’s appeal in a separate case against the Council.

Decision Overview

The Grand Chamber held that a legal opinion given to the Council (which has legislative responsibilities) concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure.

It rejected the Council’s abstract submissions that disclosure could (a) lead the public to doubt the lawfulness of a legislative act, or (b) undermine the Council’s interest in seeking frank advice. Regarding the first point, concerning impact on the public’s perception of the lawfulness of a legislative act, the Court reasoned that openness grants legitimacy to the institutions and increases the confidence of EU citizens towards these institutions while the lack of debate and information may produce doubts in respect of the legitimacy of the whole decision-making process.

The Court stated that it was incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure. Even if the Council had a legitimate concern that disclosure could harm important interests, it nonetheless had to weigh that risk against the overriding public interests that underlie Regulation No 1049/2001. The Court concluded that there was an overriding public interest because disclosure of documents containing the advice of an institution’s legal service on legal issues increases the transparency of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act.

Accordingly, the Court set aside the judgment of the Court of First Instance and, pursuant to Article 61 of the Statute of the Court (which provides that the Court itself may give final judgment in a matter where the state of proceedings so permit) annulled the Council’s decision refusing to allow Mr. Turco access to the legal opinion in question.