T-610/97

ORDER OF 3. 3. 1998 — CASE T-610/97 R

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE

3 March 1998 *

In Case T-610/97 R,

Hanne Norup Carlsen, residing in Kokkedal (Denmark),

Ingeborg Fangel, residing in Copenhagen,

Iver Reedtz-Thott, residing in Copenhagen,

Lars Ringholm, residing in Ringsted (Denmark),

Arne Würgler, residing in Hellerup (Denmark),

represented by Karen Dyekjær-Hansen and, at the hearing, by Katja Høegh, both of the Copenhagen Bar, with an address for service in Luxembourg at the Cham- bers of Aloyse May, 31 Grand-Rue,

applicants,

ν

makes the following

Order

Facts and procedure

1 By application lodged at the Registry of the Court of First Instance on 23 Decem- ber 1997, the applicants, Hanne Norup Carlsen, a social counsellor, Ingeborg Fan- gel, a student, Nicolas Fischer, a computer operator, Jørgen Erik Hansen, a watch- man, Marianne Henriksen, a fishmonger, Ole Donbæk Jensen, a shipyard worker, Yvonne Petersen, unemployed, Iver Reedtz-Thott, a tenant farmer, Lars Ringholm, a journalism student, and Arne Würgler, a musician, brought an action pursuant to Article 173 of the EC Treaty for the annulment of the Council's decision of 3 November 1997 declining to release documents D O K . R/2026/77 (ENV.118) (AGRI 563), D O K . R/1867/77 (JUR.95) (ENV.106) and D O K . R/2048 dk/77 (ENV.119) (AGRI 568), reproducing the opinions of the Legal Services of the Council and the Commission.

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CARLSEN AND OTHERS ν COUNCIL

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8 In the course of the proceedings before the Højesteret the applicants asked the Council for access to certain documents in its possession. More specifically, the applicants' lawyer, by letter of 26 September 1997 addressed to the defendant, first of all recalled that 'by letter of 16 January 1997 the Council sent to the applicants a number of Council minutes and other documents, including a briefing from Coreper to the Council of 30 March 1979'. The briefing contained a declaration by the Danish Delegation, according to which, first, it was doubtful that the provi- sions of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) 'correspond to the objectives set out in Article 2 of the EEC Treaty and whether Article 235 [could] be used' and, secondly, *[e]ven though, in this specific case, the Danish Government [did] not wish to repudiate the grounds put forward by the other eight Member States and the Legal Services on this point, it nevertheless [wished] to point out that it [did] not consider that the adoption of that directive [could] constitute a precedent for the adoption of later Community measures of a similar character'. O n the basis of the content of those declarations, the applicants' lawyer then requested the Council to send her 'the grounds put forward by the other Member States and the Legal Services' referred to in the declaration.

9 O n 30 September 1997 the applicants' lawyer also asked the defendant institution for access to the minutes of other Council measures.

1 3 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those measures must not prejudge the decision on the substance (see the order of the President of the Court of First Instance of 10 December 1997 in Case T-260/97 R Camar v Commission [1997] E C R 11-2357, paragraph 27).

The subject-matter of the application for interim measures

1 4 This application for interim measures seeks, first, an injunction ordering the Coun- cil to release to the Højesteret and the parties in the case pending before that court three documents, namely, D O K . R/2026/77 (ENV.118) (AGRI 563), D O K . R/1867/77 (JUR.95) (ENV.106) and D O K . R/2048 dk/77 (ENV.119) (AGRI 568).

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15 In its observations concerning that application for interim measures, the Council pointed out that, under cover of a letter of 3 November 1997, the applicants had received all the documents previously requested, 'apart from those which repro- duced in extenso the written views of the Legal Services of the Council and the Commission, and an extract from document R/2048/77, namely pages 1 and 2'. The Council further stated that it was prepared to release to the applicants the remainder of D O K . R/2048 dk/77 (ENV.119) (AGRI 568).

CARLSEN AND OTHERS ν COUNCIL

— First plea in law, alleging infringement of Article 190 of the Treaty

19 According to the applicants, the contested decision does not satisfy the require­ ment, under Article 190 of the Treaty, to state the reasons on which it was based since the sole reason which it mentions as justifying refusal to disclose the views of the Legal Services concerning the legal basis of Directive 79/409 is detriment to the 'public interest'. According to the applicants, a decision to such effect must 'specify individually and specifically the reason(s) for which it would in fact be detrimental to the public interest to disclose the actual legal assessments at issue'.

20 The Council contends that that plea in law is not well founded, pointing out that, as is made clear in the judgment of the Court of First Instance in Case T-105/95 in WWF UK ν Commission [1997] E C R II-313, paragraph 65, the institution con­ cerned is not obliged 'to furnish, in respect of each document, "imperative rea­ sons" in order to justify the application of the public interest exception' since, in furnishing a full explanation of such reasons it would risk 'disclosing the content of the document and, thereby, depriving the exception of its very purpose'.

21 Consequently, according to the Council, if the statement of the reasons for reject­ ing a request for access to documents need only indicate, in a general way, the subject-matter of the document in question and the general considerations on the basis of which access to the document must, for imperative reasons, be refused, the Council complied with its obligation to state reasons and was not therefore in breach of Article 190 of the Treaty.

25 Moreover, in this case, the opinions of the Legal Services are of purely historical interest, since they concern an act adopted in 1979.

26 The Council points out, first, that the legal basis of the contested decision is not Decision 93/731 but rather Article 5(2) of its Rules of Procedure (adopted by Decision 93/662/EC of 6 December 1993, OJ 1993 L 304, p. 1), pursuant to which it 'may authorise the production of a copy or an extract from its minutes for use in legal proceedings'. In any event, the Council considers that the reasons justifying its refusal to authorise disclosure of an opinion of its Legal Service are the same in both measures, namely in Article 5(2) of its Rules of Procedure and the provisions of Decision 93/731.

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29 Lastly, with regard to the allegedly historical nature of the opinions of the Legal Services concerning the legal basis of Directive 79/409, the defendant emphasises that, although those opinions concern an act adopted in 1979, the legality of such an act could still be challenged by way of a reference for a preliminary ruling or a plea of illegality. Moreover, since Article 235 of the Treaty, which constitutes the legal basis of the Directive, has remained unchanged since the Treaty of Rome

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entered into force, the arguments put forward in the opinions in question would still be relevant in a dispute concerning the legality of that Directive.

Urgency

30 The applicants state that the hearing in the proceedings before the Højesteret has been set down for 5 March 1998. Since the case raises the question whether the transfer of powers resulting from the accession of the Kingdom of Denmark to the Communities was contrary to the Danish Constitution and whether the Danish Prime Minister was entitled, on behalf of Denmark, to ratify the Treaty on Euro- pean Union, according to the applicants it is extremely important for them to have access to the documents in question in order to expose the alleged breach of the Constitution on the part of the Danish authorities when 'the competence of the Community in the area of environmental protection was accepted'.

33 The Council points out that measures ordered in proceedings for interim relief must be provisional, meaning that they must not neutralise in advance the conse- quences of the judgment in the main proceedings.

34 The measure sought in the present application for interim relief would, in the Council's view, have definitive effects, since it would neutralise the consequences of the judgment in the main proceedings. Such a measure would indeed go beyond the scope of such a judgment, since it would enjoin the Council to release certain documents, whereas the Council could not be required to do so by the Court of First Instance when delivering judgment in the main proceedings brought pursuant to Article 173 of the Treaty. The Court of First Instance can solely annul the con- tested decision; it cannot order disclosure of the documents in question.

35 The applicants reply that, even if the measures sought were granted, their interest in obtaining 'general access' to the documents would remain and that access can be established solely after the contested decision has been annulled. The purpose of the application for interim measures is different from that of the main proceedings, since the measures sought concern solely disclosure of the documents to the Højesteret and the parties concerned and would prohibit the documents from being divulged to the public, whereas in the main proceedings the applicants seek the annulment of the decision relating specifically to public access to those docu- ments.

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39 In this case it is first to be noted, that in its decision the Council refuses access to the two documents in question not because of their specific content but because they are opinions from the Legal Services of the Community institutions. Given the tenor of the decision, and in particular the fact that the two documents con­ cerned contain opinions on legal matters from services internal to the administra­ tion, it would appear that a reference in the statement of reasons to the specific effects of releasing documents having such a content, as requested by the appli­ cants, is not absolutely necessary in this case, and hence the fact that the Council did not examine the content of each document is not, taken alone, prima facie such as to render the statement of reasons inadequate. That conclusion is confirmed by the case-law of the Court of First Instance holding that the statement of the rea­ sons for a decision refusing access to documents must contain 'by reference to cat­ egories of documents' the specific reasons for which it considers that the docu­ ments detailed in the request fall under one of the exceptions precluding such disclosure (in particular the exceptions provided for in Article 4(1) of Decision 93/731 and the first paragraph of the provision entitled 'Exceptions' of the Code of Conduct) but that such a statement of reasons need not furnish, in respect of each document, the 'imperative reasons' justifying the application of the public interest exception, inasmuch as it might seem impossible to give the reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its purpose (see WWF UK ν Commission, cited above, paragraphs 64 and 65).

43 The applicants plead a breach of the Code of Conduct and of Decision 93/731, claiming, first, that, contrary to what can be concluded from the Decision, the fact that the documents which they ask to have disclosed contain legal opinions does not, taken alone, exclude the possibility that the public should have access to them, and, secondly, that there is no exception, either in the Code of Conduct or Decision 93/731, expressly concerning the public interests relied upon in the decision, namely 'the maintenance of legal certainty and the stability of Commu- nity law' and 'the Council's being able to obtain independent legal advice'.

44 In that connection, it is first necessary to establish the scope of the documents in question in order then to determine whether the Council's refusal to grant access to them is justified in the light of the provisions which the applicants allege have been infringed.

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45 The opinions of the Legal Services are clearly internal documents — which is not, in principle, sufficient to ensure confidential treatment — primarily intended to provide the institution called upon to adopt a measure with an opinion on legal issues. They are, in other words, merely working instruments.

46 Moreover, were documents of that nature to be disclosed, the discussions and exchange of views within the institutions on the legality and scope of the legal measure to be adopted would be made public and hence, as it stated, the Council might lose all interest in requesting the Legal Services for written opinions. In other words, it appears, at least on an initial examination, that disclosure of those documents could give rise to uncertainty with regard to the legality of Community measures and have a negative effect on the functioning of the Community institu­ tions. The stability of the Community legal order and the proper functioning of the institutions, which are matters of public interest for which it is unquestionably necessary to have due regard, would suffer as a result.

49 The applicants claim that, according to the case-law of the Court of First Instance, the list of exceptions to the general right of access to documents must be construed strictly (see WWF UK v Commission, cited above, paragraph 56). However, that judgment cannot cast doubt on the reading of Article 4(1) of Decision 93/731 and the first paragraph of the provision entitled 'Exceptions' of the Code of Conduct as set out above, which is based on a literal interpretation of those provisions. The latter are characterised, first, by an express reference to the general requirement that the public interest should be protected and enumerate, in brackets certain spe- cific cases where it applies, while clearly and unequivocally attaching secondary importance to those cases.

52 The President of the Court finds that that case-law may not be relied upon in the present case. The judgment in AM&S did not concern public access to the docu­ ments of private individuals but rather disclosure to the Commission of the docu­ ments of an undertaking which was the subject of an investigation under the Com­ munity competition rules. In other words, it concerned the interpretation of rules of administrative procedure in competition cases, specifically the Commission's powers of investigation. Moreover, the interests underlying the confidentiality of written communications between lawyer and client in the course of the administra­ tive procedure before the Commission are quite different from those which justify refusal to grant public access to legal opinions emanating from the services of the institutions. That same judgment makes clear that, in protecting written commu­ nications between lawyer and client 'care is taken to ensure that the rights of the defence [of the undertaking] may be exercised to the full' and that protection extends only to an independent lawyer in so far as his role is conceived 'as col­ laborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs' (AM&S ν Commission, cited above, paragraphs 23 and 24). In this case, however, what is involved is the protection of the public interest in the stability of Community law and the proper functioning of the insti­ tutions. That requirement entails, for the reasons already set out, that opinions of the Legal Services must remain confidential. Accordingly that complaint by the applicants also appears to be lacking in any foundation.

55 It must be borne in mind that, on the one hand, according to settled case-law, the measures which may be ordered in interlocutory proceedings are provisional, in the sense that they must in principle cease to produce their effects as soon as final judgment is given in the case and must not in any way anticipate the Court's decision on the substance, and that, on the other hand, they are ancillary in the sense that they must only seek to safeguard, during the course of the procedure before the Court, the interests of one of the parties to the proceedings in order to prevent the judgment in the main proceedings from being rendered illusory by being deprived of any practical effect (see the order of the President of the Court of Justice in Case C-313/90 R CIRFS and Others v Commission [1991] ECR 1-2557, paragraphs 23 and 24, and the orders of the President of the Court of First Instance in Case T-164/96 R Moeda Irme v Commission [1996] E C R II-2261, paragraph 29, and Case T-6/97 R Comafrica and Dole Fresh Fruit Europe v Com- mission [1997] ECR II-291, paragraph 51).

56 In this case, although it is not excluded that, as the applicants maintained at the hearing, even if the measures sought were granted they would still have some interest in the continuation of the main proceedings — the purpose of which, according to their submissions, is not completely identical — it is evident, first, that disclosure of the documents in question to the Højesteret and the parties con- cerned would anticipate the judgment of the Court of First Instance on the action for annulment, which is directed specifically against the decision rejecting the request for access to those documents, and, secondly, that disclosure would have effects which could not be definitively brought to an end when the judgment is delivered.

1. The application for interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 3 March 1998.

H.Jung A. Saggio

Registrar President

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