The EU General Court Wednesday held that documents circulated in EU Council working groups regarding an amendment to the EU’s 2013 financial statement directive should be publicly accessible. The court reasoned that the release of these documents would not seriously undermine the legislative process.

Emilio De Capitani, a former official at the European Parliament, sought an annulment of the Council’s 2021 decision to deny him access to certain documents, including member states’ textual comments and amendment proposals. He argued that the refusal and the Council’s failure in justifying the non-disclosure of the documents demonstrated a failure to comply with Article 4(3) of Regulation No 1049/2001, which states the refusal could only be made if “disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”.

The court recognised the importance of establishing and maintaining openness and transparency within legislative processes to ensure institutional legitimacy and citizen confidence. Article 42 of the EU’s Charter of Fundamental Rights permits any citizen of the Union to access documents of the institutions, bodies, offices, and agencies of the EU. However, the principles do not give rise to an “unconditional right of access to legislative documents,” and this right should adhere to certain limits in regulations.

It is the court’s opinion that if the Council were to deny access to certain documents, it must in principle explain how the access would “specifically and actually undermine the interest protected by that exception, and the risk of that undermining must be reasonably foreseeable and not purely hypothetical”.

The Council could not demonstrate the disclosure is particularly sensitive to the point of “jeopardising a fundamental interest” of the EU, nor could it specify the difficulties that would seriously undermine its decision-making process:

Although it has been recognised in the case-law that the risk of external pressure can constitute a legitimate ground for restricting access to documents related to the decision-making process, the reality of such external pressure must, however, be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure. There is no tangible evidence in the case file establishing, in the event of disclosure of the documents at issue, the reality of such external pressure.

The court hence annulled the decision of the Council in 2021 and ordered the Council to bear its own costs and pay those incurred by De Capitani.

De Capitani submitted a request in 2020 for access to certain documents circulated within the Council’s “Company Law” working group, which was discussing the amendment to the annual financial statements directive at the time of the request. Later that year, access was only granted partially on the grounds that the disclosure would seriously undermine the decision-making within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. Despite being given full access to all the documents in 2021, De Capitani carried on with the proceedings since the Council did not formally withdraw the contested decision and to “ensure the unlawful act committed by the Council does not recur in the future”.