Article 42 - Right of access to documents
Article 52 - Scope and interpretation
Key facts of the case:
Access to documents – Regulation (EC) No 1049/2001 – Documents concerning an ongoing legislative procedure – Council working groups – Documents concerning a legislative proposal to amend Directive 2013/34/EU on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings – Partial refusal to grant access – Action for annulment – Interest in bringing proceedings – Admissibility – First subparagraph of Article 4(3) of Regulation No 1049/2001 – Exception relating to the protection of the decision-making process
Outcome of the case:
On those grounds, THE GENERAL COURT (Tenth Chamber, Extended Composition) hereby:
1. Annuls Decision SGS 21/000067 of the Council of the European Union of 14 January 2021;
2. Orders the Council to bear its own costs and to pay those incurred by Mr Emilio De Capitani;
3. Orders the Kingdom of Belgium, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden to bear their own costs.
21 The applicant claims that, by refusing access to the documents at issue, which are, in essence, legislative documents, on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Council disregarded the new constitutional dimension concerning access to documents drawn up in the context of legislative procedures established by the FEU Treaty and the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, unlike the previous Article 207(3) EC, which allowed the Council to determine the cases in which it was to be regarded as acting in its legislative capacity in order to allow better access to documents in those cases, while preserving the effectiveness of its decision-making process, the FEU Treaty and the Charter no longer refer to any exception relating to the protection of the decision-making process in the context of legislative procedures. There are therefore legal tensions between the first subparagraph of Article 4(3) of Regulation No 1049/2001, which was adopted on the basis of earlier interpretations of the principle of transparency stemming from the EC Treaty, and Article 15(2) TFEU and Article 42 of the Charter. Therefore, the Council is required to comply directly with its obligations under the FEU Treaty and the Charter, which confer on it no discretion allowing it to refuse access to documents drawn up in the context of a legislative procedure.
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24 In the rejoinder, the Council submits that the applicant’s argument that Article 4(3) of Regulation No 1049/2001 can no longer apply to documents drawn up in the context of a legislative procedure after the entry into force of the FEU Treaty and the Charter constitutes a ‘new plea of illegality’ raised for the first time in the reply and, therefore, a new plea, which must be declared inadmissible. It also asks, in the event that the ‘new plea in law’ is to be regarded as admissible, that a measure of organisation of procedure be adopted pursuant to Article 88(1) of the Rules of Procedure of the General Court in order to invite the European Parliament and the European Commission to express a view on the alleged unlawfulness of that provision.
25 When questioned on that point in the context of a measure of organisation of procedure, the applicant challenges the plea of inadmissibility raised by the Council, claiming, in essence, that the application already set out clearly the argument that, since the entry into force of the FEU Treaty and the Charter, there is legal tension between the first subparagraph of Article 4(3) of Regulation No 1049/2001 and primary law, in particular Article 15(2) TFEU, and that, therefore, the Council had to comply with its obligations under primary law by making the legislative documents available to the public.
27 In the present case, it must be noted that, in the application, the applicant clearly submitted that Article 15(2) TFEU and Article 42 of the Charter must be interpreted as meaning that they do not confer on the Council ‘any discretion’ to refuse access to documents drawn up in the context of a legislative procedure, that that institution was required to comply ‘directly’ with its obligations under the Treaties and that, therefore, that institution had, in the present case, given an excessively broad interpretation of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. He also claimed that there was ‘legal tension’ between the latter provision and the FEU Treaty and the Charter.
30 Moreover, contrary to the Council’s contention, the applicant does not raise any plea of illegality in respect of the first subparagraph of Article 4(3) of Regulation No 1049/2001, as he confirmed moreover at the hearing. By his line of argument, the applicant does not consider that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is unlawful as such, because it is contrary to the FEU Treaty and to the Charter, but that that provision must be interpreted in the light of the FEU Treaty and the Charter as meaning that it does not apply to legislative documents, while remaining fully applicable to other types of document.
34 As noted in paragraphs 21 and 22 above, the applicant submits, in essence, that the first subparagraph of Article 4(3) of Regulation No 1049/2001 cannot be applied in order to refuse access to documents exchanged within the Council’s working groups in the context of a legislative procedure following the entry into force of the FEU Treaty and the Charter.
40 In that regard, it must be borne in mind that Article 42 of the Charter states that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.
41 The Explanations relating to the Charter, published in the Official Journal of the European Union of 14 December 2007 (OJ 2007 C 303, p. 17), to which due regard must be given by the Courts of the European Union when interpreting the Charter (see fifth recital of the preamble to the Charter), state as follows: ‘The right guaranteed in [Article 42] has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation … No 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form (see Article 15(3) of the Treaty on the Functioning of the European Union). In accordance with Article 52(2) of the Charter, the right of access to documents is exercised under the conditions and within the limits for which provision is made in Article 15(3) of the [FEU] Treaty’.
42 It follows that the right of access to documents, enshrined in Article 42 of the Charter, is exercised ‘under the conditions and within the limits for which provision is made in Article 15(3)’, TFEU.
43 That interpretation is, moreover, consistent with Article 52(2) of the Charter, according to which rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties.
47 Consequently, the provisions of the FEU Treaty and of the Charter governing the right of access to documents of the institutions, bodies, offices and agencies of the Union provide that the exercise of that right may be subject to limits and conditions laid down by regulations, including as regards access to legislative documents.
49 First, the applicant’s argument that Regulation No 1049/2001 has, in a sense, become obsolete because it was adopted on the basis of the EC Treaty and therefore does not take account of the amendments made by the FEU Treaty and by the Charter cannot succeed. As noted in paragraph 41 above, the explanations relating to the Charter state that the right guaranteed in Article 42 ‘has been taken over from Article 255 of the EC Treaty, on the basis of which [that regulation] has subsequently been adopted’. That clarification thus refers to the continuity which exists in this area between the EC Treaty and the FEU Treaty and to the continuing relevance of that regulation following the entry into force of the FEU Treaty and the Charter. If the authors of the Charter had wished to govern the right of access to documents in a way that was substantially different from the regime in force under the EC Treaty, they would have indicated this in the explanations relating to that treaty.
51 However, the second subparagraph of Article 15(3) TFEU refers to ‘limits on grounds of public or private interest governing [the] right of access to documents’, without any further clarification or distinction being made as to the nature of those limits. Therefore, there is nothing to support the conclusion that the provisions of the FEU Treaty and of the Charter exclude, as a matter of principle, the possibility that access to legislative documents may be refused on the ground that their disclosure would seriously undermine the decision-making process of the institution in question, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
53 It follows from the word ‘meet’ that Article 15(2) TFEU lays down the principle of publication of legislative debates during the sessions of the Parliament and the Council. However, that provision does not concern the right of access to documents or the limits and conditions for the exercise of that right, which are governed by Article 15(3) TFEU and Article 42 of the Charter.
60 Lastly, although the applicant also refers to Article 41 of the Charter, that provision is irrelevant to the outcome of the present dispute, since it concerns the right of every person to have access ‘to his or her file’. However, it is common ground that the documents at issue do not specifically concern the applicant.
61 To conclude, while it is true that access to legislative documents must be as wide as possible, the fact remains that the provisions of the Treaties and of the Charter relied on by the applicant cannot be interpreted as precluding, as a matter of principle, access to such documents from being refused on the ground that their disclosure would seriously undermine the institution in question’s decision-making process, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
