(AGENPARL) - Roma, 25 Gennaio 2023(AGENPARL) – mer 25 gennaio 2023 Dear All,
Please find attached press release in respect of Judgment of the General Court in Case T-163/21 | De Capitani v Council
The Council must grant access to documents drawn up within its working groups relating to the legislative procedure concerning the amendment of the directive on the annual financial statements
The General Court finds that none of the grounds relied on by the Council supports the conclusion that disclosure of the documents at issue would seriously undermine, in a concrete, actual and non-hypothetical manner, the legislative process concerned
Kind regards,
Vittorio Quartetti
Trainee
Press and Information Unit
Communication Department
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Testo Allegato:
Communications Directorate
Press and Information Unit
curia.europa.eu
PRESS RELEASE No 15
/23
Luxembourg, 25
January 2023
Judgment of the General Court
in Case T
–
163/21 | De Capitani v
Council
T
he Council
must grant access to documents drawn up within its working
groups relating to the legislative procedure concerning the
amendment of
the directive on the annual financial statements
The General Court finds that none of the grounds relied on by the Council supports the conclusion that
non
–
hypothetical
manner, th
e legislative process concerned
The applicant, Mr
Emilio De Capitani, had submitted a request for access
1
to certain documents
exchanged within
the Councilâ??s â??Company Lawâ??
working group relating to the legislative procedure conc
erning the amendment of
Directive 2013/34 on the annual financial statements.
2
The Council had refused access to certain documents on the
ground that their disclosure would seriously undermine the Councilâ??s decision
–
making process within the meaning
of Re
gulation No
1049/2001.
3
Following the applicantâ??s confirmatory application concerning access to the
undisclosed documents, the Council adopted the contested decision,
4
by which it confirmed its refusal to grant
access.
The Council working groups are inte
rnal bodies of that institution which prepare the work of the Committee of
Permanent Representatives (Coreper) and, subsequently, the ministerial formation
of the Council.
The General Court, hearing an action for annulment which it upholds,
addresses the question of access to
hand, the principles of publicity and transparency of the legislative procedure, deriving from the Treaty o
n the
Functioning of the European Union and the Charter of Fundamental Rights of the European Union
5
and, on the
other hand, the exception to the disclosure of documents taken from the protection of the decision
–
making process
of an institution,
laid down
by
secondary legislation.
6
In addition, the Court examines for the first time the
conditions for access to documents drawn up by the Councilâ??s working groups in the context of a legislative
procedure.
Findings of the Court
First, the
Court rejects the ap
plicantâ??
s argument that the exception relating to the protection of the decision
–
making
process provided for in Regulation No
1049/2001, interpreted in the light of the FEU Treaty and the Charter, does
not apply to legislative documents.
1
Under Regulation (EC)
No
1
049/2001 of the Euro
pean 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
).
2
Directive 2013/34/EU of the European Parliament and of the Council of
26
June
2013 on the annual fi
nancial statements, consolidated financial
statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and
of the Council and
repealing Council Directives 78/660/EEC and 83/349/EEC (
OJ 2013 L
18
2
,
p.
19
).
3
First subparagraph of
Article
4
(3) of Regulation
No
1
049/2001.
4
Decision
SGS
2
1/000067 of the Council of the European Union of
14
January
2021.
5
Article
15
TFEU and
Article
42
of the Charter of Fundamental Rights of the European Union (â??the
Charterâ??).
6
Within the meaning of
Article
4
(3) of Regulation
No
1049/2001.
Communications Directorate
Press and I
nformation Unit
curia.europa.eu
The Court notes th
at as the principle of openness is of fundamental importance in the European Union legal order,
the principles of publicity and transparency are inherent in the legislative procedures of the European Union.
7
Access to legislative documents must therefore
be as wide as possible. However, that does not mean that EU
primary law provides for an unconditional right of access to legislative documents. In accordance with the FEU
Treaty,
8
the right of access to documents of the EU institutions is exercised in acc
ordance with the general
principles, limits and conditions laid down by means of regulations. The provisions of the FEU Treaty governing the
right of access to documents of the institutions do not exclude legislative documents from its scope.
The Court obs
erves that that conclusion is supported by the legislative context of the right of access to documents.
It is apparent from primary law that the principle of openness is not absolute.
9
Furthermore, the Court notes that,
in accordance with Regulation No
10
49/2001, the EU institutions may refuse access to certain documents of a
legislative nature in duly justified cases.
Contrary to the applicantâ??s submissions, the Court finds, first of all, that the continuity of the right of access to
een the Treaty establishing the European Community and the FEU Treaty and concludes that
the exception to the obligation to disclose a requested document relating to the protection of the decision
–
making
process of the institution concerned, provided for i
n the first subparagraph of Article
4(3) of Regulation
No
1049/2001, remained applicable following the entry into force of the FEU Treaty and the Charter. Next, it
considers that there is nothing to support the conclusion that the provisions of the FEU Tre
aty and of the Charter
exclude, as a matter of principle, the possibility that access to documents drawn up by the Councilâ??s working groups
in the context of a legislative procedure may be refused on the ground that their disclosure would seriously
undermi
ne the Councilâ??s decision
–
making process. Lastly, it states that although the provisions of the FEU Treaty
10
lay down
the principle of publication of
legislative debates during Council sessions, they do not concern the right of access to
documents or the limits and conditions for the exercise of that right.
Secondly, the Court finds that none of the grounds relied on by the Council in the contested dec
ision supports the
conclusion that disclosure of the documents at issue would specifically, effectively and in a non
–
seriously undermine the legislative process concerned.
First of all, as regards the ground based on the allegedly sensi
tive content of the documents at issue, the Court finds
that they in fact contain specific textual comments and amendments which form part of the normal legislative
process. Although those documents relate to subjects of some importance, possibly character
ised by both political
and legal difficulty, and may contain elements resulting from â??difficult negotiationsâ?? which might reflect the
sp
ecific aspect of those documents which is particularly sensitive in the sense that a fundamental interest of the
European Union or of the Member States would have been called into question in the event of disclosure. Nor does
it explain how access to the d
ocuments at issue would specifically, effectively and in a non
–
hypothetical manner
seriously undermine the possibilities of reaching an agreement on the legislative proposal in question.
Next, as regards the preliminary nature of the discussions, within th
e Council working group, relating to the
legislative proposal in question, the Court notes that it does not justify, as such, the application of the exception
based on the protection of the decision
–
making process. That exception makes no distinction accor
ding to the state
of progress of the discussions, but envisages in general the documents relating to a question where a â??decision has
not been takenâ?? by the institution concerned. Since a proposal is, by its nature, intended to be discussed, an
applicant f
or access to legislative documents in the context of an ongoing procedure is fully aware that the
information contained therein is intended to be amended throughout the discussions in the course of the
preparatory work of the working group until agreement
on the whole text is reached. That was the objective
pursued by the request for access made by the applicant, who sought to ascertain the positions expressed by the
Member States within the Council specifically in order to generate a debate in that regard
before that institution
established its position in the legislative procedure in question.
7
Judgment of
22
March
2018,
De Capitani
v
Parliament
,
T
–
540/15
, (see also
CP 35/18
).
8
Article
15(3) TFEU.
9
Article
1 and Article
10(3) TEU and Article
15(1) TFEU.
10
Article
15(2) TFEU.
Communications Directorate
Press and I
nformation Unit
curia.europa.eu
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Furthermore, the Court finds that the Council has produced no tangible evidence to show that access to the
documents at issue would have harmed the Member Statesâ?? co
operation in good faith. It no
tes that, since the
Member States
express, in the context of Council working groups, their respective positions on a given legislative
proposal, and accept that their position could evolve, the fact that those elements are the
n disclosed, on request, is
not in itself capable of u
ndermining sincere cooperation.
11
In a system based on the principle of democratic
legitimacy, co
–
legislators must be answerable for their actions to the public and if citizens are to be able to exercis
e
their democratic rights they must be in a position to follow in detail the decision
–
making process within the
institutions taking part in the legislative procedures and to have access to all relevant information. In the present
case, there is nothing to
suggest that the Council could reasonably expect a risk of external pressure and a reaction
beyond what could be expected from the public by any member of a legislative body who proposes an amendment
to draft legislation.
Lastly, access to documents drawn
up by the Council working groups cannot be limited because of their allegedly
â??technicalâ?? nature. Whether or not a document is â??technicalâ?? is not a relevant criterion for the purposes of the
application
of
the exception based on protection of the decision
–
making process. The members of Council working
groups are given a mandate from the Member States that they represent and, at the time of deliberation on a given
legislative proposal, they express the position of their Member State within the Council, when
the Council acts in its
capacity as co
–
legislator. The fact that the working groups are not authorised to adopt the Councilâ??s definitive
position does not mean that their work does not form part of the normal legislative process, or that the documents
draw
n up are â??technicalâ?? in nature.
NOTE:
An action for annulment seeks the annulment of acts of the institutions of the European Union that are
contrary to European Union law. The Member States, the European institutions and individuals may, under certain
con
ditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well
founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the
act.
NOTE:
An appeal, limited
to points of law only, may be brought before the Court of Justice against the decision of
the General Court within two months and ten days of notification of the decision.
Unofficial document for media use, not binding on the General Court.
The
full text
of the judgment is published on the CURIA website on the day of delivery.
Press contact: Jacques René Zammit
â??
(+352) 4303 3355
11
Article
4(3) TEU
.
