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Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities

last modified Aug 21, 2012 12:44 PM

Case number:
C‑39/05 P and C‑52/05 P
Country:
European Union
Date of decision:
1 July 2008
Court / Arbiter:
Court of Justice (Grand Chamber) ( International / EU )


Decision:

The Court annulled the decision of the Council that refused access to a document containing the 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.


Keywords:
Deliberations / Advice (including free and frank provision of advice within and among public bodies, executive privilege, internal documents, opinions, analyses, reports)
Harm (including harm to legitimate interest, harm test)
International law
Legislature / Parliament (including committees, individual legislators)
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Public interest (including public interest override, information of public interest)

Case details:

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.

Decision

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 is 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.

Resources:

Judgment of the Court.