The European Court of Justice (ECJ) has made a key ruling which provides that applicants under the Public Access Regulation (1049/2001) are entitled to see copies of the legal advice given to the EU Council regarding proposed Directives. The decision could lead to an explosion in the requests for advice, particularly from lobbyists seeking information on upcoming legal developments.
This judgment is a reversal of a decision by the Court of First Instance (CFI), which held that Article 4(2) of the Public Access Directive provided for a blanket exclusion on the release of legal advice obtained by the Council. The ECJ held that Article 4(2), which provides that documents may be withheld where their disclosure would undermine the protection of legal advice, was only applicable where the recipient of that advice (in this case the EU Council) could show that it was clearly foreseeable that there was a risk that advice would be undermined.
In the case before the ECJ, the EU Council was receiving legal advice in relation to a proposed Directive which would set out minimum standards for the reception of persons seeking asylum. An individual sought to undercover the legal advice received in relation to this proposed Directive, a request which was opposed by the Council, citing Article 4(2) as a justification. The ECJ rejected this reasoning, stating that the process of formulating this Directive would benefit from transparency, and that there was an overriding public interest in releasing the legal advice obtained by the Council in this case.
This judgment is significant because it does away with the myth that legal advice to the Council is covered by a blanket exclusion protecting it from release. Any risk that legal advice may be undermined must be reasonably foreseeable and not based on a purely hypothetical conjecture, because the public interest in reviewing the advice received by the Council is so great.
This ruling could be of great use to those in public sector or telecoms, who would value the chance to review the advice that the Council receives from its myriad legal advisors. This being the case, being in receipt of the advice of the Council could leave lobbyists, interested parties and multinationals able to influence the formulation of Directives by submitting their own contradictory legal advice. It remains to be seen whether the ECJ will seek to confine this case to it's facts, but if it fails to do so, it has just handed a powerful tool to those seeking to influence the formulation of EU law.