General Court Orders Partial Disclosure in Access to ECHR Accession Negotiation Documents Case Law professor offers constitutional arguments for the disclosure of important Council documents. The General Court orders partial disclosure, but only on procedural grounds. By Maarten Hillebrandt On Thursday 12 September, the General Court gave its judgment in Besselink v Council. In January 2011, Leonard Besselink (pictured), then Professor of Constitutional Law at Utrecht University, requested access to the documents relating to the EU’s negotiations to accede to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In these documents, the Council discussed the strategic and substantive instructions to the Commission, which negotiated the accession on the EU’s behalf. The final draft of this draft accession treaty is currently going through the process of ratification. However, the Council refused access to the documents in which it instructed the Commission, on the basis of Article 4(1), third indent, of Regulation 1049/2001 on public access to EU documents. This article states that access must be refused where disclosure would undermine the public interest with regard to international relations. In a court case, Besselink contested the Council’s reasoning. He argued that the Council had misconstrued the public interest in international relations, failed to apply its obligation to closely consider the possibility of partial access, and had fallen short in its duty to give reasons for its censorship of documents. An overarching concern in Besselink’s request for access was the public interest in a broad societal debate concerning the EU’s accession to the ECHR. As he argued in his application to the Court, the accession was of a constitutional nature, which made the disclosure of this document of exceptional societal relevance. The General Court, in its judgement, refuses to go along with this constitutional reading. Rather, it applies a strict procedural review of the access request. It takes note of the Council argument that the documents are particularly sensitive due to their role in a negotiation with an external third party. The particular sensitivity that the Council claims is legally characterised by its reliance on Article 4(1), which is an obligatory exception ground of the Regulation 1049/2001. As the Court holds, it should therefore allow for a considerable margin of appreciation, as disclosure might undermine the ongoing negotiation as well as and future negotiations. In the judgement, it therefore merely reconsiders whether the Council correctly applied the procedural requirements under the access regulation, and comes to the conclusion that this is not the case for a part of the requested documents. It may be noted in this respect that the General Court has followed a narrow reading of Article 11 of the Charter of Fundamental Rights of the European Union, which upholds a public right to freely express opinions and impart information. In this instance, the substance of Article 11 of the Charter was interpreted as a negative right. This means that it merely entails an obligation on the Council to abstain from interference in the free exercise of opinion. Instead, a positive reading of the right could have entailed a duty on the Council’s side to facilitate a debate on questions of exceptional political significance, through the provision of highly relevant information that it holds on the matter. The result may be typified as unimaginative by some, and balanced by others. While the General Court concludes that the Council was too quick in refusing access to parts of the requested documents, it did not go along with Besselink’s claim to the exceptional, constitutionally significant nature of the requested documents. This means that it has foregone the opportunity take a bold step in the direction of more transparency and public debate. At the same, the judgement also provides a careful exercise of procedural scrutiny, which allows for wider public access than the Council was willing to grant at first instance. This shows once more that the public cannot take for granted that the Council will always carry out Regulation 1049/2001 to the letter, and proves the continuing value of close judicial review. JUDGMENT OF THE GENERAL COURT (Fifth Chamber) 12 September 2013 (*) (Access to documents – Regulation (EC) No 1049/2001 – Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms – Exception relating to the protection of the public interest as regards international relations – Partial access – Obligation to state reasons – Application for measures of organisation of procedure or inquiry – Inadmissible) In Case T‑331/11, Leonard Besselink, residing in Utrecht (Netherlands), represented by O. Brouwer, J. Blockx and E. Raedts, lawyers, applicant, v Council of the European Union, represented initially by C. Fekete, P. Plaza García and J. Herrmann, and subsequently by P. Plaza García, J. Herrmann and B. Driessen, acting as Agents, defendant, supported by European Commission, represented by E. Paasivirta and P. Costa de Oliveira, acting as Agents, intervener, APPLICATION for annulment of the Council Decision of 1 April 2011 refusing access in full to document 9689/10, containing a draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, THE GENERAL COURT (Fifth Chamber), composed of S. Papasavvas, President, V. Vadapalas (Rapporteur) and K. O’Higgins, Judges, Registrar: N. Rosner, Administrator, having regard to the written procedure and further to the hearing on 16 April 2013, gives the following Judgment Background to the dispute 1 On 23 January 2011 the applicant, Mr Leonard Besselink, Professor of Constitutional Law in the Faculty of Law of the University of Utrecht (The Netherlands), requested access, pursuant to 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), to document 9689/10 containing a draft decision of the Council of the European Union authorising the Commission to negotiate the Accession Agreement of the European Union (‘the Union’ or ‘the EU’) to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). 2 As well as the Draft Council Decision authorising negotiations for the accession of the Union to the ECHR (‘the draft Council Decision’), document 9689/10 includes, in an annex, the negotiating directives to be complied with by the Commission in its capacity as negotiator for the Union (‘the negotiating directives’). 3 On 27 January 2011 the Council refused access to document 9689/10, on the basis of the third indent of Article 4(1)(a) of Regulation No 1049/2001. 4 On 17 February 2011 the applicant made a confirmatory application within the meaning of Article 7(2) of Regulation No 1049/2001. 5 By decision of 1 April 2011 (‘the contested decision’), the Council refused full access to document 9689/10, relying on the exception provided for in the third indent of Article 4(1)(a) of Regulation No 1049/2001, and gave access to a partly declassified version of that document. 6 In the contested decision, the Council states, first of all, that ‘release to the public of document 9689/10 containing the text of the abovementioned draft Council Decision would reveal the Union’s strategic objectives to be achieved in the international negotiations in question and would thereby enable [its] negotiating partners to assess the measure of [its] willingness to compromise’ and adds that ‘there is a real risk that disclosure of the Union’s negotiating mandate would weaken [its] negotiating position and hamper the sensitive overall process of accession to the ECHR’ (paragraph 7 of the contested decision). 7 Next, the Council explains that ‘disclosure of a preparatory document relating to the position of the Union in the negotiations would, beyond the ongoing negotiating process, jeopardise the climate of confidence among those actors directly or indirectly involved in those negotiations who trust that negotiating objectives will not be disclosed’ and that that ‘could have negative consequences for future international negotiations to be conducted by the Union’ (paragraph 8 of the contested decision). 8 Furthermore, the Council claims that ‘[t]he detailed wording of the mandate as such has never been officially released to the public by the Council’ and that ‘[p]ublic access to the exact wording of the mandate or parts of it would reveal to anyone, including those involved in the negotiations, the precise content and limits of the negotiating directives’ (paragraph 9 of the contested decision). 9 In addition, according to the Council, the parts of the mandate concerning negotiations relating to the accession of the Union to the protocols to the ECHR could not be disclosed, since, ‘[f]irst, the accession process of the Union to the ECHR consist[ed] of a combination of unilateral acts and multilateral negotiations that [were] intrinsically linked’ and, ‘[s]econd, it [was] clear that the exception covering international relations applie[d] to both unilateral acts and international negotiations involving the Union’ (paragraph 10 of the contested decision). 10 Furthermore, as the exception relied on in the present case comes under the third indent of Article 4(1)(a) of Regulation No 1049/2001, the Council states that ‘once it is established that the requested document falls within the sphere of international relations and that the protection of the invoked interest would be impaired if the document were to be disclosed, the institution must refuse public access’, without there being any need to weigh up the public interest thus protected against an overriding public interest that would justify releasing the document (paragraph 12 of the contested decision). 11 Last, in application of Article 4(6) of Regulation No 1049/2001, the Council granted partial access to pages 1 and 2 and also to the text of the draft Council Decision on pages 3 and 4, with the exception of Article 5 of that draft (paragraph 14 of the contested decision). Procedure and forms of order sought 12 By application lodged at the Court Registry on 16 June 2011, the applicant brought the present action. 13 By document lodged at the Court Registry on 16 September 2011, the Commission requested leave to intervene in support of the form of order sought by the Council. That request was granted by order of the President of the Fifth Chamber of the Court of 23 November 2011. 14 By order of 21 February 2013, the Court ordered that Council Document DS 1930/10 of 22 December 2010 constituting a Commission working document, included in Annex A.13 to the application, and the extract from that document in paragraph 44 of the application, were to be removed from the case-file (order of the General Court of 21 February 2013 in Case T‑331/11 Besselink v Council, not published in the ECR). 15 By way of a measure of inquiry provided for in Article 65 of the Rules of Procedure, the Court, by order of 19 March 2013, ordered the Council to produce document 9689/10 without disclosing it to the applicant or the Commission. By letter of 10 April 2013, the Council produced document 9689/10. 16 By document lodged at the Court Registry on 15 April 2013, the applicant requested the Court to adopt measures of organisation of procedure or measures of inquiry (‘the request of 15 April 2013’), in which it stated that document DS 1930/10 had been published on the website of the Parliament of the Kingdom of the Netherlands and whereby it sought, first, production of the screen shot of the website of the Parliament of the Kingdom of the Netherlands on which the document in question was displayed; second, that the Council be asked to explain on what basis that document must be still regarded as an internal Council document; and, third, that the order in Besselink v Council, paragraph 14 above, should be reconsidered in the light of those allegedly new facts. 17 The parties presented oral argument and their answers to the questions put to the Court at the hearing on 16 April 2013. 18 At the hearing, the Council and the Commission were invited to submit their observations on the applicant’s request of 15 April 2013. 19 The applicant claims that the Court should: – annul the contested decision; – order the Council to pay the costs, including those of the interveners. 20 The Council, supported by the Commission, contends that the Court should: – dismiss the action as unfounded; – order the applicant to pay the costs. Law 1. Admissibility of the request of 15 April 2013 21 The applicant maintains, in the request of 15 April 2013, that as document DS 1930/10 was published by the Parliament of the Kingdom of the Netherlands, it can no longer be regarded as an internal Council document. On the contrary, in the applicant’s submission, document DS 1930/10 should be regarded as having been shared with the Member States without any restriction having been placed on them regarding its publication. In addition, the applicant maintains that no action was taken by the EU institutions to have document DS 1930/10 removed from the website of the Parliament of the Kingdom of the Netherlands and that that document constitutes solid evidence that the Council was excessive in the redaction of the contested decision and thus substantiates the applicant’s second plea. Last, the applicant’s interest in being able to rely on documents which are in the public domain ought to prevail in such circumstances. 22 At the hearing the Court decided to place the screen shot on the file and to put to the parties the questions referred to in the second paragraph of the request of 15 April 2013 (see paragraph 16 above). 23 As regards the third point made in the request of 15 April 2013, the Council, supported by the Commission, requested that the order in Besselink v Commission, paragraph 14 above, be upheld. The Council emphasised that the disclosure of document DS 1930/10 by the Parliament of the Kingdom of the Netherlands was not relevant for the purpose of determining whether that document was in the public domain. 24 According to Article 64(2)(a) and (b) of those rules, the purpose of measures of organisation of procedure is, in particular, to ensure efficient conduct of the written and oral procedure and to facilitate the taking of evidence and also to determine the points on which the parties must present further argument or which call for measures of inquiry. As for measures of inquiry, their purpose, according to Articles 65 to 67 of the Rules of Procedure, is to enable the veracity of the factual claims made by a party in support of its pleas to be proved. 25 The measure of organisation of procedure or measure of inquiry proposed by the applicant seeks a reconsideration of an order of the Court made in response to a request to withdraw a document from the case-file. Accordingly, that request goes beyond the object of a request for a measure of organisation of procedure or a measure of inquiry within the meaning of Articles 64 to 67 of the Rules of Procedure, so that the Court would exceed its jurisdiction by adjudicating on that request. 26 Consequently, the request of 15 April 2013, in that it is aimed at requesting the Court to reconsider the order of 21 February 2013, must be rejected as inadmissible. 2. Substance 27 In support of his action, the applicant relies on three pleas in law, alleging, first, infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001; second, infringement of Article 4(6) of that regulation; and, third, breach of the obligation to state reasons. Preliminary considerations 28 As a preliminary point, it should be borne in mind that Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the public the widest possible access to documents of the institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 33, and Case T‑63/10 Jurašinović v Council [2012] ECR I‑0000, paragraph 28). 29 However, that right is none the less subject to certain limits based on grounds of public or private interest (Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 62, and Jurašinović v Council, paragraph 28 above, paragraph 29). 30 More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 71, and Jurašinović v Council, paragraph 28 above, paragraph 30). 31 Furthermore, where an institution is asked to disclose a document, it must assess in each individual case whether that document falls within the exceptions, set out in Article 4 of Regulation No 1049/2001, to the right of public access to documents of the institutions (see, to that effect, Sweden and Turco v Council, paragraph 28 above, paragraph 35). In view of the objectives pursued by that regulation, those exceptions must be interpreted and applied strictly (Sweden and Turco v Council, paragraph 28 above, paragraph 36). 32 None the less, it must be borne in mind that the particularly sensitive and essential nature of the interests protected by Article 4(1)(a) of Regulation No 1049/2001, combined with the fact that access must be refused by the institution, under that provision, if disclosure of a document to the public would undermine those interests, confers on the decision which must thus be adopted by the institution a complex and delicate nature which calls for the exercise of particular care. Such a decision therefore requires a margin of appreciation (Sison v Council, paragraph 29 above, paragraph 35, and Jurašinović v Council, paragraph 28 above, paragraph 32). 33 Last, it should be observed that the criteria set out in Article 4(1)(a) of Regulation No 1049/2001 are very general, since access must be refused, as is clear from the wording of that provision, if disclosure of the document concerned would ‘undermine’ the protection of the ‘public interest’ as regards, inter alia, ‘international relations’ (Sison v Council, paragraph 29 above, paragraph 36, and Jurašinović v Council, paragraph 28 above, paragraph 33). 34 Consequently, the Court’s review of the legality of decisions of the institutions refusing access to documents on the basis of the exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation No 1049/2001 must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers (Sison v Council, paragraph 29 above, paragraph 34, and Jurašinović v Council, paragraph 28 above, paragraph 34). First plea, alleging infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001 35 Under the third indent of Article 4(1)(a) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations. 36 The applicant maintains, first, that the Council was wrong not to take into account the constitutional nature of the draft decision and the negotiating directives contained in document 9689/10, to which he sought access. Second, the applicant submits that access to that document is also warranted on the basis of the freedom of expression provided for in the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389). Third, the applicant submits that the Council overlooked and omitted to take into account the specific circumstances and subject-matter of the present case, which means that none of the arguments and reasons on which the Council relies in order to maintain that disclosure of document 9689/10 would undermine the public interest as regards international relations can be accepted or upheld. The same applies, fourth, to the suggestion that disclosure of document 9689/10 could have negative consequences for future negotiations to be conducted by the Union. 37 In the first place, as regards the complaints which the applicant puts forward in connection with what he claims to be the constitutional nature of document 9689/10 and those relating to the alleged infringement of Article 11 of the Charter of Fundamental Rights, they must be rejected as inadmissible, pursuant to Article 44(1)(c) of the Rules of Procedure. 38 It should be borne in mind that, under Article 44(1)(c) of the Rules of Procedure, an application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements must be satisfied where a submission is made in support of a plea in law (Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 333). 39 However, it must be stated that, as regards the complaint relating to the alleged constitutional nature of document 9689/10, the applicant merely relies on Sweden and Turco v Council, paragraph 28 above, and submits that a public debate should have been permitted before the Union’s accession to the ECHR. The extremely laconic and summary nature of the way in which the complaint in question is presented does not enable the alleged infringement to be identified in such a way as to allow the Court to exercise its power of review (see, to that effect, Case T‑131/99 Shaw and Falla v Commission [2002] ECR II‑2023, paragraph 172). 40 Likewise, as regards the complaint alleging infringement of Article 11 of the Charter of Fundamental Rights, the applicant has merely indicated that the refusal of access to document 9689/10 constituted a breach of the freedom of expression guaranteed by that article. That abstract and unsubstantiated statement does not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure. 41 Thus, those complaints must be rejected as inadmissible, in accordance with Article 44(1)(c) of the Rules of Procedure. 42 In any event, the Court’s review must focus on the legality of the contested decision solely in the light of Regulation No 1049/2001 and not on the alleged constitutional nature of document 9689/10 or the legality of Regulation No 1049/2001 by reference to the Charter of Fundamental Rights, since no objection of illegality has been raised in the present case. 43 In that regard, even on the assumption that the complaint alleging the constitutional nature of document 9689/10 might be understood as seeking to establish that the accession of the Union to the ECHR is a constitutional issue, document 9689/10 was specifically drafted with a view to opening the negotiations leading to the accession of the Union to the ECHR. Thus, the question is not whether the Union will accede to the ECHR, but the way in which it will do so. What is discussed in that document is the procedures whereby the Union will accede to the ECHR and, accordingly, the strategic objectives to be attained in the context of the negotiations with the partners. Owing to its content, document 9689/10 is capable of coming within the exception relating to the public interest as regards international relations. 44 It should be borne in mind that the exceptions set out in Article 4(1) of Regulation No 1049/2001 are framed in mandatory terms and it follows that the institutions are obliged to refuse access to documents falling under any one of those mandatory exceptions once the relevant circumstances are shown to exist and that there is no need to balance the protection of the public interest against an overriding general interest (see, to that effect, Case T‑264/04 WWF European Policy Programme v Council [2007] ECR II‑911, paragraphs 44 and 45). 45 Furthermore, even if it were accepted that Article 6(2) TEU, in that it provides that the Union is to accede to the ECHR, did assume constitutional scope, that could not overshadow the fact that the practical procedures for that accession, which are not provided for in the EU Treaty, are determined in the context of the Union’s international relations. Accordingly, that cannot influence the question whether disclosure of document 9689/10 could undermine the interests protected by Article 4(1)(a) of Regulation No 1049/2001 or, accordingly, the question whether the access sought to such a document must be refused. It is appropriate, in particular, to point out in that regard that, while providing that documents drawn up or received in the context of procedures for the adoption of legally binding acts in or for Member States should be made directly accessible, Article 12(2) of that regulation adds, however, that this is only subject to Articles 4 and 9 thereof (see, to that effect, Sison v Council, paragraph 29 above, paragraph 41). 46 Last, the applicant’s argument that Sison v Council, paragraph 29 above, is not applicable in the present case, since the objectives pursued by the applicant in that case were of a private nature, whereas the applicant in the present case sought to create a forum for public debate, must be rejected. Under Article 2(1) of Regulation No 1049/2001, those enjoying a right of access to documents of the institutions are citizens of the Union and any natural or legal person residing or having its registered office in a Member State, and such persons are not required to show that they have a specific interest in obtaining access to those documents. The fact that the applicant wished to create a forum for public debate therefore does not affect the right of access to documents provided for in Regulation No 1049/2001 and decisions adopted on the basis of that provision (see, by analogy, Joined Cases T‑197/11 and T‑198/11 Commission and Strack v Strack and Commission [2012] ECR II‑0000, paragraph 48). 47 Moreover, even on the assumption that the refusal of the applicant’s request in the present case should also be analysed from the aspect of freedom of expression and information enshrined in Article 11 of the Charter of Fundamental Rights, the fact none the less remains that the exercise of that freedom may, under Article 52(1) of the Charter, be limited, without there being any interference by public authority, within the meaning of Article 11(1) of the Charter. 48 In the present case, there are no acts, in the strict sense, constituting interference by the authorities of the Union with the applicant’s freedom to receive information. It should be noted, moreover, that the applicant himself does not mention any interference by the Council. It follows that, even on the assumption that it is consistent with Article 44(1)(c) of the Rules of Procedure, the applicant’s complaint alleging breach of his right to freedom of expression as guaranteed by Article 11 of the Charter of Fundamental Rights and Article 10 of the ECHR is ineffective. 49 In the second place, in the applicant’s submission, that fact that, first, important parts of the negotiating directives do not concern matters that are subject to negotiations and, second, various parts of the negotiating directives have already been made public, argue in favour of the full disclosure of document 9689/10. 50 It must be borne in mind that, where the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by an exception provided for in Article 4 of Regulation No 1049/2001 on which the institution is relying (Case T‑167/10 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 64). 51 However, in accordance with what was indicated at paragraph 34 above, review by the Court will be limited to determining that there has been no manifest error in the assessment of the facts. 52 The applicant submits, first, that the exception relating to the public interest as regards international relations applies only where disclosure of a document would undermine that public interest. However, the question of the precise additional protocols to the ECHR to which the Union will accede is not subject to negotiations. Accordingly, the disclosure of those protocols could not undermine the public interest as regards international relations. 53 In that regard, the applicant relies on Council Document 14516/10 of 13 October 2010, attached as Annex A.11 to the application, in which it is stated that the Commission informed the working party on ‘Fundamental Rights, Citizens’ Rights and Free Movement of Persons’ that Negotiating Directive No 5, on the accession of the Union to the protocols to the ECHR, had been communicated to the negotiating partners of the Union and also that the question of accession by the Union to the additional protocols to the ECHR was not part of the negotiations. 54 At paragraph 10 of the contested decision, the Council stated that, ‘[f]irst, the accession process of the Union to the ECHR consist[ed] of a combination of unilateral acts and multilateral negotiations that [were] intrinsically linked’ and that, ‘[s]econd, it [was] clear that the exception covering international relations applie[d] to both unilateral acts and international negotiations involving the Union’. 55 The Council has explained in the defence that even if it were possible to agree that the choice as to which protocol or protocols to accede to rested with the Union, other questions, such as whether it was open to a non-State entity like the Union to accede to the additional protocols, or the concrete terms of such accession, remained to be discussed in the negotiations. 56 In that regard, although the choice of the additional protocols to which the Union will accede is a choice for the Union itself, the fact none the less remains that those protocols are international convention instruments. Accordingly, it must be considered that Negotiating Directive No 5, relating to the question of the Union’s accession to the additional protocols to the ECHR, is capable of coming within the exception relating to the public interest as regards international relations. 57 That being so, it is necessary to take into account the particular context in which examination of access to Negotiating Directive No 5 falls, in the light of the circumstances referred to at paragraph 53 above. 58 In that regard, although that fact has not been called into question by the Council or the Commission, it must be emphasised that Negotiating Directive No 5 was communicated to the negotiating partners. Accordingly, the risk that the public interest as regards international relations will be undermined cannot be justified on the ground that disclosure of that directive would weaken the Union’s negotiating position. 59 Furthermore, it is apparent upon examining document 9689/10 produced by the Council in order to comply with the order of 19 March 2013 that Negotiating Directive No 5 contains only the Union’s position on the Union’s accession to the additional protocols and does not contain, for example, the position of the Union’s negotiating partners or the Union’s position on the position of its partners. Thus, disclosure of Negotiating Directive No 5 cannot jeopardise the climate of confidence between the parties participating directly or indirectly in those negotiations. 60 Last, it is not apparent from the contested decision how disclosure of Negotiating Directive No 5 would actually and effectively undermine the public interest as regards international relations. The Council merely observes, at paragraph 10 to that decision, that the exception covering the public interest as regards international relations also applies to unilateral acts, without indicating the specific elements on which it might be concluded that disclosure of Negotiating Directive No 5 would undermine that public interest. 61 Accordingly, it must be concluded that the Council made a manifest error of assessment in refusing access to Negotiating Directive No 5. 62 The applicant claims, second, that publicly available documents repeatedly copy, paraphrase and discuss substantial parts of the negotiating directives contained in Document No 9689/10. It follows that the Council can no longer claim that disclosure of those directives would reveal the Union’s objectives and weaken its negotiating position. 63 The Council submits that a distinction must be drawn between referring to the negotiating directives and disclosing their exact content and limits. 64 In addition, the Council has stated that Document No 9689/10 is a preparatory document, disclosure of which would weaken the Union’s negotiating position. Such disclosure would give an insight to internal discussions within the Council of the negotiating directives for the Union’s accession to the ECHR, which would enable the Union’s negotiating partner to identify issues which had given rise to divergences of views during the Union’s internal discussions. 65 At paragraph 9 of the contested decision, the Commission stated that: ‘The detailed wording of the mandate as such has never been officially released to the public by the Council. Public access to the exact wording of the mandate or parts of it would reveal to anyone, including those involved in the negotiations, the precise content and limits of the negotiating directives. As stated above, releasing such information to the public would weaken the Union’s negotiating position and hamper the sensitive overall process of accession to the ECHR.’ 66 In that regard, it should be observed that Annex A.12 to the application, Council Document No 11394/10 of 22 June 2010, contains a paragraph which states that the individual delegates of Member States at the meeting of the Steering Committee for Human Rights questioned negotiating directives No 1(e), No 6, No 7, No 8 and No 10(b). However, the detailed content of those directives was not reproduced. 67 Annex A.14 to the application consists of Council Document 10568/10 of 2 June 2010, on the role of the Court of Justice of the European Union in reviewing the compatibility of acts of the Union with fundamental rights, which forms the subject-matter of Negotiating Directive No 11. 68 As for Annex A.15 to the application, Council Document 10569/10 of 2 June 2010, it deals with the co-respondent mechanism, a matter addressed in Negotiating Directive No 10. 69 Last, as regards Annex A.8 to the application, the Joint Communication from the President of the European Court of Human Rights and the President of the Court of Justice of 24 January 2011, and Annex A.16 to the application, a speech made by a judge of the Court of Justice on 18 March 2010, they are documents relating to the role of the Court of Justice after the Union has acceded to the ECHR. However, those documents contain no express reference to Negotiating Directive No 11. 70 It should be borne in mind, first of all, that it cannot be precluded that disclosure of the Union’s positions in international negotiations might undermine the protection of the public interest as regards international relations (Case T‑301/10 In ’t Veld v Commission [2013] ECR II‑0000, paragraph 123). 71 Next, although some parts of the negotiating directives have been published, it must be observed that, as the Council has indicated, their precise content has not been disclosed. It must be emphasised that the consideration that knowledge of the negotiating directives might have been exploited by the other parties to the negotiations is sufficient to establish a risk that the interest of the Union as regards international relations might be undermined. 72 Furthermore, as is apparent from the contested decision, document 9689/10 is a preparatory document. In the context of international negotiations, the positions taken by the Union are, by definition, subject to change depending on the course of those negotiations and on concessions and compromises made in that context by the various stakeholders. The formulation of negotiating positions may involve a number of tactical considerations on the part of the negotiators, including the Union itself. In that context, it cannot be precluded that disclosure by the Union, to the public, of its own negotiating positions, when the negotiating positions of the other parties remain secret, could, in practice, have a negative effect on the negotiating capacity of the Union (In ’t Veld v Commission, paragraph 70 above, paragraph 125). 73 Consequently, the Council was entitled to consider that disclosure of the detailed content of the negotiating directives, with the exception of Negotiating Directive No 5, could undermine the public interest as regards international relations. 74 In the third place, in the applicant’s submission, the Council has not shown how disclosure of the draft decision and the negotiating directives contained in document 9689/10 could have negative consequences for the future negotiations to be conducted by the Union. The Council’s fears in that regard are purely hypothetical, contrary to the requirements of the case-law. 75 In that regard, the Council stated the following at paragraph 8 of the contested decision; ‘[D]isclosure of a preparatory document relating to the position of the Union in the negotiations would, beyond the ongoing negotiating process, jeopardise the climate of confidence among those actors directly or indirectly involved in those negotiations who trust that negotiating objectives will not be disclosed. This could have negative consequences for future international relations to be conducted by the Union.’ 76 The Council has stated in the defence that the text of the draft decision and the negotiating directives contained in document 9689/10 resulted from preliminary discussions within the Council and therefore reflected an intermediary state of its discussions, where some of the issues had been kept in suspense and others had been the subject of divergent positions. The release of the requested document would, consequently, prejudice the position of the Union’s negotiator in the ongoing negotiations and would also have a negative impact on the Union’s capacity to conduct its internal discussions on strategic questions related to international negotiations in an atmosphere of tranquility. 77 Contrary to the applicant’s assertion in the reply, it is apparent from paragraph 8 of the contested decision that document 9689/10 is a preparatory document. In addition, at paragraphs 1, 5 and 7 of the contested decision the word ‘draft’ is used to describe the content of the requested document. 78 In the circumstances, it is sufficient to observe that, as established at paragraphs 71 and 72 above, the consideration that knowledge of the negotiating directives might have been exploited by the other party to the negotiations is sufficient to establish that a risk of the interest of the Union as regards international relations might be jeopardised and the disclosure of the Union’s positions, although they are subject to change in the course of the negotiations, might undermine its negotiating capacity. 79 Consequently, the first plea must be rejected as inadmissible in part and unfounded in part, with the exception of the complaint relating to Negotiating Directive No 5, in respect of which it must be concluded that the Council made a manifest error of assessment in refusing access to that directive. Second plea, alleging infringement of Article 4(6) of Regulation No 1049/2001 80 The applicant submits that the Council infringed Article 4(6) of Regulation No 1049/2001 and the principle of proportionality by failing to consider whether it was appropriate to grant partial access to document 9689/10 and refuse access only to the parts of the document for which such refusal was appropriate and necessary. In that regard, the applicant maintains that the Council did not carry out a correct and appropriate assessment of the passages in respect of which partial access might have been granted. 81 The Council contends that it considered the possibility of granting partial access to document 9689/10, in accordance with Article 4(6) of Regulation No 1049/2001, and that it substantiated to the requisite legal standard the need for protection against disclosure of part of the document, in the light of its content. In the circumstances, it was precisely as a result of that examination that the Council authorised partial access to the introductory paragraph (pages 1 and 2 of document 9689/10) and also to the text of the Council’s draft decision (pages 3 and 4 of document 9689/10), with the exception of Article 5 of that draft. 82 According to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions referred to above, the remaining parts of the document are to be released. 83 According to the case-law of the Court of Justice, examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality (Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraphs 27 and 28). 84 It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution in refusing access to a document could be achieved if the institution merely struck out the passages which might harm the public interest to be protected (Council v Hautala, paragraph 83 above, paragraph 29, and WWF European Policy Programme v Council, paragraph 44 above, paragraph 50). 85 In the present case, the Council granted access to pages 1 and 2 of the document and also to the draft Council Decision on pages 3 and 4, with the exception of Article 5 of that draft (see paragraph 14 of the contested decision). 86 It should be observed that, as the applicant claims, partial access is very restricted, as the version of the document in question that was disclosed was limited, essentially, to its introductory part and to part of the draft Council Decision. 87 None the less, it should be ascertained, in the light of the principle of proportionality, whether the restricted nature of the partial access granted in the present case is justified by reference to the exception relied on. 88 In that regard, as regards the exception set out in the third indent of Article 4(1)(a) of Regulation No 1049/2001, it should be borne in mind that the Council has a wide discretion when assessing whether the disclosure of a document could undermine the public interest as regards international relations, taking into account the sensitive and essential nature of the protected interest (see paragraph 33 above). 89 It follows from the foregoing developments (see paragraphs 61 and 73 above) that the Council made a manifest error of assessment in refusing to disclose Negotiating Directive No 5, but that, as regards the other negotiating directives, the fact that some parts of them might have been made public did not mean that disclosure of their detailed content could not have undermined the public interest as regards international relations. 90 That being so, it is apparent upon examining document 9689/10 that certain parts of the negotiating directives could have been disclosed without the public interest of the Union as regards international relations being affected. 91 That is the case for the parts of the draft decision and the negotiating directives in which the Council merely referred to the principles that should govern the negotiations for the accession of the Union to the ECHR. Article 6(2) TEU and Protocol No 8, relating to Article 6(2) TEU on the accession of the Union to the ECHR, have already specified certain objectives to be achieved or the limits that must not be exceeded in those negotiations, such as the fact that accession of the Union to the ECHR is not to affect either the competences of the Union or the powers of its institutions. 92 The same also applies to the negotiating directives, in which the Council establishes, at most, a list of questions to be addressed in the negotiations, but without specifically answering them (see, by analogy, In ’t Veld v Commission, paragraph 70 above, paragraph 140). 93 In those circumstances, the error found in the application of the third indent of Article 4(1)(a) of Regulation No 1049/2001 leads to the conclusion that the analysis carried out in the contested decision as to the extent to which partial access should be granted was unlawful. 94 It follows from all of those considerations that, in the context of partial access to the document, the Council has not fulfilled its obligation to limit its refusal solely to the information covered by the exception on which it relied. 95 Examination of the second plea therefore leads to annulment in part of the contested decision, in that it refuses access to Negotiating Directive No 5 and to the undisclosed parts of the requested document, which set out the principles laid down by the EU Treaty that must govern negotiations for the accession of the Union to the ECHR, or which only set out the questions to be addressed in the negotiations. Third plea, alleging breach of the obligation to state reasons 96 The reasons for any decision adopted by an institution on the basis of the exceptions set out in Article 4 of Regulation No 1049/2001 must be stated. If an institution decides to refuse access to a document which it has been asked to disclose, it must explain, first, how access to that document could specifically and effectively undermine the interest protected by an exception provided for in Article 4 of Regulation No 1049/2001 and relied on by that institution and, second, in the situations referred to in Article 4(2) and (3) of that regulation, whether there is an overriding public interest that might nevertheless justify disclosure of the document concerned (see, to that effect, Sweden and Turco v Council, paragraph 27 above, paragraphs 48 and 49). 97 The Council’s argument that where an institution relies on the protection of one of the public-interest exceptions provided for in Article 4(1)(a) of Regulation No 1049/2001, including protection of the public interest as regards international relations, the legal standard of ‘specific and effective harm’ is not applicable must therefore be rejected. 98 It follows from the case-law cited at paragraph 96 above that there is no need to distinguish, when assessing whether the institution has indeed provided explanations as to how access to a document might specifically and effectively undermine the interest protected by an exception provided for in Article 4 of Regulation No 1049/2001, between paragraphs 1, 2 and 3 of Article 4 of that regulation. A distinction is drawn between paragraphs 1, 2 and 3 of Article 4 of Regulation No 1049/2001 only in a second stage, where it is necessary to ascertain that the institution took into account the existence of an overriding public interest that would justify disclosure of the document concerned. 99 In addition, it is for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine (Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council [2005] ECR II‑1429, paragraph 61). 100 The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited). 101 The applicant asserts that the Council has not complied with its obligation to state reasons under Article 296 TFEU, since it has failed to provide any reason that would explain how access to document 9689/10 could have specifically and effectively undermined the public interest as regards international relations. 102 The Council contends that it explained how disclosure of document 9689/10 would undermine the protection of the public interest as regards international relations. In that regard, it claims that it was impossible to state more precisely the reasons for refusal without revealing the content of document 9689/10 and thus depriving the exception laid down in the third indent of Article 4(1)(a) of Regulation No 1049/2001 of its essential purpose. 103 In that regard, it must be borne in mind that, according to consistent case-law, the mere fact that a document concerns an interest protected by an exception is not sufficient to justify the application of that exception. Such application may, as a rule, be justified only if the institution has previously assessed whether access to the document could specifically and effectively undermine the protected interest. Furthermore, the risk of an interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must, in principle, undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons given for the decision (see, to that effect, Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraph 69, and Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006] ECR II‑2023, paragraph 115). 104 In the contested decision, the Council stated, at paragraph 6, that the negotiations on the accession of the Union to the ECHR had begun on 7 July 2010 and were still on-going at the time of adoption of the contested decision. Furthermore, at paragraph 7 of the contested decision, the Council states, in essence, that the disclosure of document 9689/10 would reveal the Union’s strategic objectives to be achieved in the current negotiations and would thereby enable the Union’s partners to assess the measure of the Union’s willingness to compromise. At paragraph 8 of the contested decision, moreover, the Council explained that such disclosure would jeopardise the climate of confidence among actors in the international negotiations and would have negative consequences for those future negotiations. Likewise, at paragraph 9 of the contested decision, the Council claimed that disclosure of the content of the negotiating directives would weaken the Union’s negotiating position. In the contested decision, at paragraph 10, the Council considered that the exception relating to the public interest as regards international relations applies both to multilateral acts and to unilateral acts, namely to the additional protocols to the ECHR. 105 In the present case, the Council therefore identified the exception on which it based its refusal, namely the exception relating to the public interest as regards international relations, resulting from the third indent of Article 4(1)(a) of Regulation No 1049/2001. It explained how that exception was relevant to document 9689/10, observing that that document contained the strategic objectives to be achieved in the context of the negotiations for the accession of the Union to the ECHR. Last, it provided a brief explanation of the need for protection on which it relied, claiming that disclosure of document 9689/10 would enable the Union’s negotiating partners to know its scope for manoeuvre in those negotiations, thereby weakening the Union’s negotiating position. 106 It should be observed that the general nature of that reasoning, in so far as the Council does not identify the sensitive content which could be revealed by disclosure, is justified by a concern not to disclose the information which the exception on which it relies, relating to the protection of the public interest as regards international relations, seeks to protect (see, to that effect, Sison v Council, paragraph 29 above, paragraph 82). 107 The third plea must therefore be rejected. 108 In the light of all of the foregoing, it is appropriate to annul the contested decision in part, in that it refuses, in breach of the third indent of Article 4(1)(a) and Article 4(6) of Regulation No 1049/2001, access to Negotiating Directive No 5 and to the undisclosed parts of the requested document, which set out the principles laid down in the EU Treaty that should govern the negotiations for the accession of the Union to the ECHR or which only set out the questions to be addressed in the negotiations. 109 In that regard, it should be observed that it is not for the Court to substitute itself for the Council and to indicate the parts of the document to which access ought to have been granted, as the institution is required, when complying with this judgment, to take into consideration the relevant grounds of the judgment (see, to that effect, Franchet and Byk v Commission, paragraph 103 above, paragraph 133). 110 It follows that it will be for the Council to assess, taking into account the grounds of this judgment, the extent to which access to the undisclosed parts of the document in question is likely specifically and actually to undermine the interests protected by the exceptions in Article 4 of Regulation No 1049/2001. Costs 111 Under Article 87(2) 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. Pursuant to Article 87(3) of the Rules of Procedure, however, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads. In addition, under the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which intervened in the proceedings are to bear their own costs. 112 As the applicant and the Council have each been partially unsuccessful in this case, they must be ordered to bear their own costs. The Commission is ordered to bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls the Council Decision of 1 April 2011 refusing full access to document 9689/10 in that it refuses access to Negotiating Directive No 5 and to the undisclosed parts of the requested document, which set out the principles laid down in the EU Treaty that should govern negotiations for the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or which only set out the questions to be addressed in the negotiations; 2. Dismisses the action as to the remainder; 3. Orders the parties to bear their own costs. Papasavvas Vadapalas O’Higgins Delivered in open court in Luxembourg on 12 September 2013. [Signatures] * Language of the case: English.
Posted on: Sun, 03 Nov 2013 22:34:29 +0000
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