Judgment of the General Court (Second Chamber) of 21 April 2021

1. EU institutionsRight of public access to documentsRegulation No 1049/2001Exceptions to the right of access to documentsStrict interpretation and applicationRequirement that the institution should examine the documents specifically and individuallyScope

(European Parliament and Council Regulation No 1049/2001, Art. 4)

(see paras 27-30)

2. EU institutionsRight of public access to documentsRegulation No 1049/2001Exceptions to the right of access to documentsProtection of the decision-making processConditionsConcrete, actual and serious detriment to that processScopeRefusal to grant full access to a legal opinion of the Council’s Legal ServiceNo such detriment

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)

(see paras 42-44, 48)

3. EU institutionsRight of public access to documentsRegulation No 1049/2001Exceptions to the right of access to documentsProtection of legal adviceObligation on the institution to examine the nature of the measure as legal advice and the actual possibility of the protection of legal advice being undermined, and to verify the absence of an overriding public interest in disclosure

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

(see paras 78, 79, 83)

4. EU institutionsRight of public access to documentsRegulation No 1049/2001Exceptions to the right of access to documentsProtection of legal adviceOverriding public interest justifying the disclosure of documentsConceptRequirement that the institution should weigh the opposing interestsDisclosure of legal opinions concerning legislative processesObligation on the institution to state in detail its reasons for any decision refusing access

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

(see paras 80, 81)

Re:

Application under Article 263 TFEU seeking annulment of the decision of the Council of 12 February 2019 refusing to grant full access to the opinion of its Legal Service contained in document ST 13593 2018 INIT concerning the proposal for a regulation of the European Parliament and of the Council of 2 May 2018 on the protection of the European Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final).

Operative part

The Court:

1. Annuls the decision of the Council of the European Union of 12 February 2019 refusing full access to document ST 13593 2018 INIT, containing the opinion of the Legal Service of the Council concerning the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018) 324 final);

2. Orders the Council to bear its own costs and to pay those incurred by Mr Laurent Pech;

3. Orders the Kingdom of Sweden to bear its own costs.