On 25 January 2023, the General Court of the European Union (GC) decided that the Council’s refusal to provide a citizen with the access to certain documents could not be upheld since it did not demonstrate that the leak of those documents would seriously undermine, in a concrete, actual and non-hypothetical manner, the legislative process concerned.

The question arises in October 2020, when Mr. Emilio De Capitani, former head of the LIBE Committee Secretariat, on the basis of the Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Regulation No 1049/2001), sent a request for access to documents exchanged within the Council’s Company Law working group relating to legislative procedure 2016/0107 concerning the amendment of Directive 2013/24 on the annual financial statements amending Directive 2006/43. Less than one month later, De Capitani saw his request partially satisfied: on 10 November 2020, the Council released seven documents but, at the same time, denied the applicant to access to the remaining seven documents, that in the text will be referred as “documents at issue”; this decision was grounded on Article 4(3) of Regulation No 1049/2001, according to which access to a document should be denied if the disclosure of those documents seriously undermines the institution’s decision making-process. Afterwards, the applicant sent a confirmatory application to the Council requiring the access to the documents at issue; with Decision SGS 21/000067 of 14 January 2021, the Council confirmed again its position and refused to grant access to those documents.

To explain this position, the Council presented a number of arguments, and the first one concerns the applicant’s continuing interest in bringing proceeding. It is important to remind that, in accordance with the judgement of the Court of Justice in the case Leino-Sandberg v Parliament (para. 32), “an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible” and that “that purpose must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it”. In the specific case, the Council argues that Mr. De Capitani’s interest in bringing proceedings has ceased to exist in the course of the proceedings since the documents were released on 14 June 2021 and the action was no longer able to provide satisfaction to the applicant: the action was void of purpose. However, even if the documents at issue were released, the Council never withdrew Decision SGS 21/000067, ergo the legal proceedings have maintained their purpose.

In this situation, it is necessary to determine whether the disclosure took place in good time, in other words it is necessary to statue if the applicant, notwithstanding the disclosure of the documents at issue, still had an interest in bringing proceedings. Considering that the Council adopted its negotiating position on 3 March 2021 and an agreement was reached on 1 June 2021, the disclosure, 14 June 2021, did not happen in a good time. Analogously to the case-law ClientEarth v Commission (paragraph 47), the applicant was not able to pursue the objectives for which he asked to access the documents at issue; Mr. De Capitani did not have the possibility to know the position of the Member States within the Council and, if necessary, to inform the public generating a debate before the Council established its position. Therefore, the disclosure of the documents at issue did not provide full satisfaction to the applicant; consequently and, in accordance with the Judgment of the General Court (paragraph 18), the Council’s argument that the applicant’s interest in bringing proceedings has ceased in the course of proceeding must be rejected.

On the opposite side, Mr. Emilio De Capitani argues that the decision of the Council does not take into account the new constitutional dimension, that created a new legal regime for public access to legislative documents. The matter rises due to legal tensions between Article 4 of Regulation 1049/2001, interpreted in the light of the principle of transparency proposed by Article 255(2) of the EC Treaty  on one side, and on the opposite side Article 15(2) TFEU in conjunction with Article 42 of the Charter of Fundamental Rights of the European Union (the Charter). The principle of transparency is found in Regulation 1049/2001, which had the specific purpose to give the fullest possible effect to the right of public access to documents and to lay down its general principles and limits, in accordance with Article 255(2) of the EC Treaty. Regulation No 1049/2001 was implemented with the precise goal to put into practice article 225 of the EC Treaty, but problems occurred when in 2009 the EC Treaty ceased to exist: with the Treaty of Lisbon all the European Community institutions were directly included into the European Union’s framework, so they were now subject of the Treaty on the Functioning of the European Union, since the European Community did not exist anymore.

In fact, if Article 207(3) EC gave the Council the possibility to determine the cases in which “the public shall have access to Council documents” in order to preserve the effectiveness of its decision-making process, the Treaty on the Functioning of the European Union and the Charter do not assure anymore this possibility. The Council is now required to comply directly with the obligations specified by the TFEU and the Charter; to put it in another way, the Council now has to allow access to all documents in the context of a legislative procedure.

Responding to Mr. De Capitani, the Council has brought up the difference between two dimensions of the legislative transparency: the first one regards the Council in its composition including representatives at ministerial level and respecting the prescriptions of Article 16 TFEU. The second dimension that referred in Article 15(3) TFEU does not provide for an unconditional right to access to legislative documents. The Council also claims that the arguments according to which Article 4(3) of Regulation No 1049/2001 cannot be applied to documents related to legislative procedures after the implementation of the TFEU and the Charter, must be declared inadmissible since it represents a new appeal of illegality. In order to make this plea admissible, the Council requires a procedure, following Article 88(1) of the Rules of Procedure of the General Court, to invite the European Parliament and the European Commission to express a view on the matter.

To answer to the plea of inadmissibility raised by the Council, it is useful to see Judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission; according to the case-law it is not possible to introduce new plea in law in the course of proceedings unless it is based on matters that have emerged in the course of the procedure. The applicant maintains that Article 4(3) of Regulation 1049/2001 can no longer apply to legislative documents since Article 15(2) TFEU directly imposes an obligation of transparence on the EU legislature as regards the legislative process; i.e., the applicant merely amplified a plea already present in the application, which must be allowed by the EU judge.

Following this one, Mr. Emilio De Capitani to support his action presented other two main pleas, both of them regarding the violation of the third paragraph of Article 4 of Regulation 1049/2001. The first one directly concerns the failure to demonstrate that, as ordered by Article 4(3), the disclosure of the documents at issue would seriously undermine the institution’s decision-making process. The second plea is about the failure in proving the absence of a dominant public interest to justify the disclosure of the documents at issue. In regards of the first argument against the Council’s action, the General Court agrees with Mr. De Capitani: the Council was not able to produce concrete evidences to show that access to the documents at issue would undermine the cooperation of the Member States. In respect of the principle of sincere cooperation enshrined in Article 4(3) TEU, when working in the context of Council working groups, the Member States express their position on a certain legislative proposal and at the same time they accept that their position can evolve, so it is not possible that the disclosure of the requested documents could harm the sincere cooperation requested by the abovementioned Article. In its motivations, the Council made an allusion to the possible external pressures and their effect on the procedure; yet, the expression of public opinion regarding a particular legislative procedure is part of the exercise of Union’s citizens’ democratic right to participate in the democratic life of the European Union (Article 10(3) TEU). The General Court recognized that the public pressure can be used as a reason for denying access to certain documents; but this can happen only in the case of a clear and certain evidence of this risk. However, in the specific circumstance, the Council did not present tangible evidence of the risk represented by the potential disclosure of the documents at issue, consequently this appeal must be rejected.

The second element contested by the applicant is the Council’s statement that the legitimate public interest in the access to the documents at issue did not exceed the legitimate need to protect the decision-making process. As outlined in Article 4(3) of Regulation No 1049/2001, the public interest must be proven only if the institution concerned considered that the disclosure of certain documents would specifically and actually undermine the legislative process. But the simple fact that Mr. De Capitani had access to certain documents related to the same legislative procedure cannot justify the refusal of access to the other documents.

As last argument before the General Court, the Council presented a distinction between the documents disclosed and already discussed in the case De Capitani v Parliament (judgement of 22 March 2018, De Capitani v Parliament), and the documents at issue. The Council recalls that those documents are related to discussions within the discussion groups, so they have technical character. However, those documents contain normative proposal for various legislative texts, consequently they are part of the ordinary legislative procedure and they have no technical characteristics. In any event, it should be noted that the technical nature or not of a document does not represent a benchmark for the application of Article 4(3) of Regulation No 1049/2001.

Finally, in compliance with the previous consideration, it is possible to maintain that none of the arguments presented by the Council supports the conclusion that the disclosure of the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the legislative process. On that account, the contested decision must be annulled without examining the pleas following the first one, that must be upheld.