Dimitrios Kyriazis (DPhil, Oxon), Assistant Professor in EU Law at the Law School of the Aristotle University of Thessaloniki.

Photo credit: Bela Geletneky, via Wikimedia Commons

In the combined cases of ClientEarth v Council (T-682/21 and T-683/21), the General Court of the European Union (GC) reviewed a challenge brought by ClientEarth AISBL and Ms. Leino-Sandberg against the Council of the EU. The applicants sought to overturn the Council’s decision to withhold access to documents they had requested under the Public Access to Documents Regulation and the Aarhus Convention Regulation. The GC ruled in favor of ClientEarth, annulling the Council’s decision to restrict access.

This ruling carries significant implications. First, it clarifies the transparency obligations of EU institutions. Second, it promotes openness in EU lawmaking. Lastly, it reinforces the standards for justifying EU decisions.

This analysis will first outline the background of the case and the legal arguments presented. It will then examine the GC’s key judgments before concluding with an assessment of the ruling’s broader impact.

Background of the Case and Legal Arguments

ClientEarth AISBL and Ms. Päivi Leino-Sandberg filed actions for annulment under Article 263 TFEU. They sought to overturn the decisions, documented in Council letters SGS 21/2869 and SGS 21/2870 dated August 9, 2021, which partially denied access to document 8721/21. This document, issued by the Council’s legal service, contained its legal evaluation of the proposed amendment to the EU Aarhus Regulation.

The Aarhus Regulation, enacted in 2006, aimed to align the EU with the Aarhus Convention, which guarantees public access to information, participation in decision-making, and access to justice on environmental issues.

In 2017, the Aarhus Convention Compliance Committee (Aarhus Committee) identified that the EU was not fully compliant with the Convention regarding public access to justice. It recommended amending the EU Aarhus Regulation to broaden its scope beyond individual acts and include all acts contradicting environmental law and to grant access to the public beyond specific NGOs.

Following a proposal from the European Commission in 2020 to amend the Aarhus Regulation and subsequent advice from the Aarhus Committee, the Council’s legal service drafted an opinion on the proposal in May 2021, documented as 8721/21. ClientEarth requested full access, but the Council only granted access to certain sections. ClientEarth filed confirmatory applications, and the Council, in its contested August 2021 decisions, granted access to additional paragraphs but maintained its refusal for full disclosure.

ClientEarth presented four pleas in law, arguing that the Council committed legal errors and a manifest error of assessment. The first three pleas focused on legal errors, while the fourth served as a subsidiary plea. This analysis will prioritize the second plea, followed by the first and third, focusing solely on the key legal arguments.

Second Plea in Law (paras 26-87)

ClientEarth’s second plea alleged that the Council erred in applying the exception under Article 4(2) of Regulation No 1049/2001, concerning the protection of legal advice. This provision allows withholding document access if disclosure compromises legal advice, unless outweighed by public interest. A three-part test is established in case law to implement this exception.

First, the institution (in this case, the Council) must determine if the requested document contains legal advice, and if so, identify the specific sections applicable to the exception. Second, the institution must assess if disclosing those sections would undermine the protection of legal advice. The crucial question here is whether it would be detrimental to the institution’s ability to seek and receive unbiased and comprehensive legal advice. Any risk of undermining this interest must be realistically probable and not merely theoretical. Finally, even if disclosure is deemed potentially harmful to legal advice, the institution must determine if an overriding public interest justifies disclosure despite potential risks.

Addressing these conditions sequentially, the applicants first contested whether the opinion even qualified as legal advice, a claim quickly dismissed by the GC, which affirmed that the document’s content addressed legal questions and thus fell under the legal advice exception (para 42).

Moving to the second condition, the applicants contended that the document lacked sensitivity and scope, implying the Council erred in assessing that disclosure would undermine legal advice. They argued the Council didn’t prove the existence of an actual, specific, and foreseeable risk associated with disclosure, nor did it establish the document’s wide scope within its legislative context.

To support the sensitive nature of the document, the Council presented three arguments: the context and content of the document; potential external pressure if released; and the possibility of related litigation before EU Courts.

The GC systematically refuted each defense. It emphasized that the document itself must be sensitive, not merely its context (para 58). If it solely contains legal assessments lacking novelty, sensitive information, or confidential facts, it cannot be classified as sensitive (para 59), contradicting the Council’s position.

The Court then addressed the Council’s argument that disclosure would subject its legal service to external pressure, potentially influencing future advice and hindering unbiased opinions. The GC rejected this abstract concern. It highlighted established case law emphasizing that transparency in EU legislative processes enhances institutional legitimacy and public trust by enabling open debate on differing viewpoints (para 64). Therefore, citing a generic “external pressure” risk was insufficient to prove a threat to legal advice protection, leading to the rejection of this argument.

Regarding the sensitivity of the document due to potential litigation before EU Courts, the GC remained unconvinced. The Council argued that publishing an initially negative opinion on a legislative draft would hinder its defense of that act’s legality in court. While this appears plausible, the GC reminded the Council that such a general argument does not justify an exception to the transparency principle of Regulation No 1049/2001 (para 74). The Council failed to specify how disclosure would harm its defense in potential litigation regarding the Aarhus Regulation’s interpretation or application. Furthermore, the document’s content did not demonstrably express a negative stance on the Commission’s proposed amendment. Concluding this point, the GC stated that the Council’s refusal demonstrated an error of assessment, thereby upholding the applicants’ first complaint (para 76).

Shifting to the applicants’ second complaint, which contested the Council’s claim of the document’s wide scope, the Council presented two arguments. Firstly, aligning the Aarhus Regulation’s internal review mechanism with acts contradicting environmental law, as proposed by the Commission, mirrored standing limitations under Article 263 TFEU. The Council argued that the document’s analysis had broader implications than the specific legislative process. Secondly, the document allegedly touched upon issues influencing the Commission’s future legislative proposals within the “European Green Deal” framework.

The GC countered by stating that the Council merely alluded to the document’s potential influence on future environmental legislation, while the Commission’s proposal for amending the Aarhus Regulation remained specific to those matters (para 82). The GC also logically dismantled the analogy with Article 263 TFEU, stating that the Council didn’t demonstrate how the Commission’s proposal on the Aarhus Regulation impacted the admissibility of annulment actions filed by individuals or legal entities, governed by Article 263 TFEU and only amendable through Treaty revisions (para 84). The GC upheld the second complaint, along with the entirety of the applicant’s second plea in law (para 87), and proceeded to examine the first plea.

First Plea in Law (paras 88-103)

ClientEarth’s first plea asserted that the Council erred in applying the exception provided in Article 4(3) of Regulation No 1049/2001, pertaining to the protection of the decision-making process. This provision allows institutions to refuse access to internal documents concerning ongoing decision-making processes if disclosure would significantly undermine those processes, barring an overriding public interest in disclosure.

The applicants argued that because the Council had already adopted its position on the Commission’s proposal and reached a provisional agreement when the contested decisions were made, there was no active decision-making process that disclosure could jeopardize.

The GC clarified the rationale behind this provision: to ensure institutions have space for deliberation to determine policy choices and potential proposals (para 93). However, this provision becomes inapplicable to procedures already concluded when the access request was made (para 96). The GC pragmatically acknowledged that agreements reached during trilogues are typically adopted by co-legislators without major modifications. Therefore, the decision-making process involving the requested document was deemed closed when the Council endorsed the provisional agreement (para 99), rendering the Council’s reliance on this provision to refuse disclosure a legal error (para 101).

Third Plea in Law (paras 104-120)

The applicants’ third and final plea argued that the Council erred in applying the exception under Article 4(1)(a) of Regulation No 1049/2001, concerning the protection of the public interest regarding international relations. The applicants maintained that disclosing the legal document posed no risk to international relations and deemed the exception inapplicable.

To justify invoking this exception, the Council argued that full disclosure would expose considerations regarding the “legal viability of solutions for addressing the EU’s alleged non-compliance with the Aarhus Convention." The Council stressed that the risk to the public interest, particularly international relations, was foreseeable, as the Aarhus Convention compliance issue was scheduled for discussion at an upcoming meeting of involved parties in 2021. They argued that other parties could leverage the requested document during the meeting, potentially weakening the European Union’s position.

The GC maintained its stringent approach to such claims, noting that simply linking a document’s content to the EU’s objectives in international agreements does not automatically justify withholding access on the grounds of protecting international relations (para 112). More importantly, the GC stated that enacting secondary EU legislation naturally involves legal analyses from each participating institution, potentially leading to diverging legal interpretations. However, such divergences are inherent to any legislative process and can be addressed in international forums without necessarily compromising the EU’s stance on the final adopted act (para 114). Consequently, the Council failed to provide concrete, specific, and plausible evidence of a risk to the EU’s international relations concerning other parties involved in the Aarhus Convention (para 118).

The GC deemed it unnecessary to examine the applicants’ fourth and subsidiary plea, alleging an infringement of Article 4(6) of Regulation No 1049/2001 concerning the Council’s failure to grant broader access, as the annulment of the decisions was already established (para 120).

Broader Implications and Conclusion

The GC’s thorough and well-reasoned ruling holds significance for several reasons. It clarifies the conditions for legitimately refusing document access and emphasizes that any “risk” cited by EU institutions to justify refusal must be concrete, actual, foreseeable, and not merely hypothetical. Additionally, it demonstrates the EU Courts’ pragmatic understanding of EU lawmaking processes.

Most crucially, this ruling underscores a significant principle: even in high-stakes political situations, EU Courts prioritize transparency. The sentiment “sunlight is said to be the best of disinfectants,” once articulated by Justice Brandeis in the context of the US Supreme Court, resonates with this ruling in Luxembourg.