In Case T-188/98,
Aldo Kuijer, residing in Utrecht (Netherlands), represented by
O.W. Brouwer and F.P. Louis, of the Brussels Bar, and D. Curtin,
Professor at the University of Utrecht, with an address for service
in Luxembourg at the Chambers of M. Loesch, 11 Rue Goethe,
Council of the European Union, represented by M. Bauer and M.
Bishop, Legal Advisers, acting as Agents, with an address for
service in Luxembourg at the office of Alessandro Morbilli, Manager
of the Legal Affairs Directorate of the European Investment Bank,
100 Boulevard Konrad Adenauer,
APPLICATION for annulment of the Council's decision of 28 September
1998, as amended by its decision of 18 May 1999, refusing the
applicant access to certain documents,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
composed of: R.M. Moura Ramos, President, V. Tiili and P. Mengozzi,
Registrar: J. Palacio González, Administrator,
having regard to the written procedure and further to the hearing
on 14 October 1999,
gives the following
1 On 6 December 1993 the Council and the Commission approved
a Code of Conduct concerning public access to Council and Commission
Documents (OJ 1993 L 340, p. 41, `the Code of Conduct'), designed
to establish the principles governing access to the documents
held by them. The Code of Conduct sets out the following principle:
`The public will have the widest possible access to documents
held by the Commission and the Council'.
2 The Code of Conduct also provides that: `The Commission and
the Council will severally take steps to implement these principles
before 1 January 1994'.
3 In order to put that commitment into effect, the Council adopted
Decision 93/731/EC of 20 December 1993 on public access to Council
documents (OJ 1993 L 340, p. 43).
4 Article 1 of Decision 93/731 provides as follows:
`1. The public shall have access to Council documents under the
conditions laid down in this Decision.
2. "Council document" means any written text, whatever
its medium, containing existing data and held by the Council,
subject to Article 2(2).'
5 Article 4(1) reads as follows:
`Access to a Council document shall not be granted where its
disclosure could undermine:
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
6 Article 5 of the Decision provides:
`The Secretary-General shall reply on behalf of the Council to
applications for access to Council documents, except in the cases
referred to in Article 7(3), in which the reply shall come from
7 Article 7(1) and (3) provide as follows:
`1. The applicant shall be informed in writing within a month
by the relevant departments of the General Secretariat either
that his application has been approved or that the intention
is to reject it. In the latter case, the applicant shall also
be informed of the reasons for this intention and that he has
one month to make a confirmatory application for that position
to be reconsidered, failing which he will be deemed to have withdrawn
his original application.
3. Any decision to reject a confirmatory application, which shall
be taken within a month of submission of such application, shall
state the grounds on which it is based ...'.
Facts of the case
8 The applicant is a university lecturer and researcher in asylum
and immigration matters.
9 By letter of 3 July 1998 addressed to the General Secretariat
of the Council, he requested access to certain documents related
to the activities of the Centre for Information, Discussion and
Exchange on Asylum (`CIREA'). The following documents were requested:
- joint Common Foreign and Security Policy (CFSP) reports, analyses
or evaluations drawn up by or in connection with CIREA between
1994 and 1997 and, if available, those for 1998 concerning the
situation in third countries or regions from which many asylum-seekers
originate or in which they reside, particularly 28 countries
listed in the application (`CIREA reports');
- reports of any joint missions or reports on missions carried
out by Member States in third countries and sent to CIREA (`reports
drawn up for CIREA');
- a list drawn up by or in connection with CIREA of the contact
persons in the Member States involved with asylum cases (`the
list of contact persons'), with any subsequent changes to that
10 By letter of 28 July 1998 to the applicant, the Secretary-General
replied that CIREA reports had been prepared between 1994 and
1998 on the situation of asylum-seekers returning to their own
country for the following countries: Albania, Angola, Sri Lanka,
Bulgaria, Turkey, China, Zaïre, Nigeria and Vietnam. He
nevertheless rejected the application for access to those documents
and to the list of contact persons, pursuant to Article 4(1)
of Decision 93/731. With regard to reports drawn up for CIREA,
the Secretary-General informed the applicant that such documents
did not exist.
11 By letter of 25 August 1998, the applicant made a confirmatory
application pursuant to Article 7(1) of Decision 93/731. In respect
of CIREA reports, he stated that he was surprised that the `Council
also [intended] to keep confidential e.g. the reports on countries
like Nigeria, Iran and Iraq, while it [could] hardly be argued
that relations between the Union and those countries [were] cordial'.
With regard to reports drawn up for CIREA, the applicant set
out his specific reasons for believing that the Secretary-General's
reply to the effect that such documents did not exist was wrong.
He also challenged the part of the decision concerning the list
of contact persons.
12 By letter of 28 September 1998, the Secretary-General informed
the applicant that the Council had rejected his confirmatory
application (`the contested decision'). The letter is couched
in the following terms:
`After careful consideration, the Council has decided to confirm
[the decision of the Secretary-General] as set out in the letter
of 28 July 1998 in respect of the requests [concerning CIREA
reports and the list of contact persons]. After examination of
each of the following documents, the Council has decided not
to disclose them for the following reasons:
(a) [number of document]: Accompanying note by the Council's
General Secretariat to CIREA: report of the Heads of Missions
of the Twelve on the situation of [country] asylum-seekers returning
to [same country]. This report contains very sensitive information
about the political, economical and social situation in [country],
which was provided by the Heads of the European Union Member
State Missions. The Council is of the opinion that disclosure
of this information might damage the relations between the European
Union and [country]. The Council has therefore decided that access
to this document has to be denied on the basis of Article 4(1)
of the Decision [93/731] (international relations).
(b) List of CIREA contact persons who deal with applications
for asylum: the General Secretariat has not been able to find
a specific Council document with [such] a list.
The Council will furthermore try to trace (from as far back as
1994) documents in which the reports [drawn up for CIREA] can
be found ... The applicant will be informed of the result of
these investigations in due course.'
13 On 14 October 1998, the applicant was informed that, following
investigations by the competent service of the General Secretariat,
it had been decided that he could be granted access to 10 reports
prepared by the Danish authorities on fact-finding missions in
third countries. With regard to four other reports drawn up for
CIREA by the authorities of other Member States (listed in the
letter), access was denied for the following reason, repeated
for each document:
`The General Secretariat is of the opinion that disclosure of
the very detailed, sensitive information of this report may endanger
European Union relations with [the country concerned], as well
as the bilateral relations of [the Member State whose authorities
had carried out the mission] with this country. Access to this
document is therefore denied on the basis of Article 4(1) of
the Decision [93/731] (international relations).'
14 By letter of 18 May 1999, the General Secretariat notified
to the applicant a fresh reply from the Council to the confirmatory
application of 25 August 1998. In that reply the Council indicated
that a list of contact persons did exist and appeared in document
5971/2/98 CIREA 18. In consequence, it admitted that the contested
decision was wrong on that point.
15 The Council nevertheless refused to authorise access to that
document pursuant to Article 4(1) of Decision 93/731. It stated
in its reply: `[The document in question] contains a list of
contact persons designated by each Member State between which
information on asylum seekers may be exchanged. It gives information
on the countries of origin for which they are responsible and
indicates their office address and their direct telephone and
fax number.' The Council went on to assert that it was for the
Member States to decide if and to what extent that type of information
could be made publicly available. It indicated that a number
of Member States opposed such a course in order to safeguard
the operational efficiency of their public service. Were the
Council to release such information, which had been provided
to the Council for the specific purpose of establishing an internal
network of contact persons to facilitate cooperation and coordination
on asylum matters, the Member States would be reticent about
providing such information in the future. In those circumstances,
disclosure of that document could undermine the public interest
in the functioning of the exchange of information and coordination
between Member States in the field of asylum and immigration.
Procedure and forms of order sought by the parties
16 By application lodged at the Registry of the Court of First
Instance on 4 December 1998, the applicant brought the present
17 The written procedure was concluded on 28 April 1999 when
the applicant chose not to lodge a reply.
18 By letter of 26 May 1999, the Council informed the Court of
First Instance that, after re-examining the applicant's request
for access to the list of contact persons, it had decided to
refuse access to that document, and enclosed the text of the
fresh reply to the applicant dated 18 May 1999.
19 The Court invited the applicant to submit observations on
that decision which he did on 8 July 1999. In his observations
he challenges that fresh decision and asks the Court, in so far
as the decision is confined to giving new reasons for the refusal
and for reasons of economy of procedure, to accept the amendment
to the pleas in law relied on in support of his application for
annulment of the contested decision with regard to the list of
20 Upon hearing the report of the Judge-Rapporteur, the Court
of First Instance (Fourth Chamber) decided to open the oral procedure
and asked the parties to reply in writing to certain questions.
At the Court's request, the Council produced a copy of the Danish
reports prepared for CIREA to which the applicant had been granted
21 The parties presented oral argument and gave replies to the
Court's questions at the hearing on 14 October 1999.
22 The applicant claims that the Court should:
- annul the contested decision;
- order the Council to pay the costs.
23 The Council contends that the Court should:
- dismiss the application;
- order the applicant to pay the costs.
24 The applicant is seeking annulment of the contested decision
in so far as it refuses his request for access to CIREA reports,
reports drawn up for CIREA and the list of contact persons. He
puts forward three pleas in law in support of his application.
By the first plea he alleges breach of Decision 93/731, in that
access to the documents requested would not affect the international
relations of the European Union, the refusal was not based on
a concrete assessment of the content of those documents and the
Council refused to grant partial access to them. By the second
plea he alleges breach of the obligation to state reasons. By
the third plea he alleges breach of a fundamental principle of
Community law requiring access to be given to the documents of
the Community institutions.
25 The applicant also asks the Court, pursuant to the duty of
sincere cooperation between the Community institutions, to order
the Council to produce all the documents in question should the
Council not do so voluntarily.
26 As already mentioned, on 18 May 1999 the Council adopted a
fresh decision in response to the confirmatory application with
regard to the list of contact persons. The institution admitted
that the contested decision contained a factual error and justified
its refusal with a fresh statement of reasons. In the circumstances,
the Court will assess the lawfulness of the contested decision
as amended by the decision of 18 May 1999, in the light of the
pleas put forward in the application as reformulated by the applicant
in his observations lodged on 8 July 1999, in accordance with
27 The Court will first examine the plea of breach of the obligation
to state reasons.
Plea of breach of the obligation to state reasons
Arguments of the parties
28 The applicant considers that the reasons given in the contested
decision do not satisfy the requirements of Articles 190 of the
EC Treaty (now Article 253 EC) and 7(3) of Decision 93/731.
29 As regards CIREA reports, the Council simply stated that they
contained detailed information on the political situation in
the countries concerned, without explaining how their disclosure
could damage European Union relations with those countries. The
applicant has not been given any indication as to why, in relation
to each country, the documents could not be released, and consequently
he was not able to protect his interests in accordance with the
case-law of the Court of Justice.
30 Despite the diversity of the situations in each of the countries
involved, the institution confined itself to giving a short,
identical and ritualistic response in respect of each report,
containing the same declaration; it did not identify the nature
of the information contained in each of documents or examine
whether disclosure of that information was likely to damage the
public interest. Access to a document may never be denied merely
by reference to the category to which the document belongs.
31 With regard to reports drawn up for CIREA, the applicant maintains
that when confronted with proof of their existence, the Council
again confined itself to replying to the application for access
in a vague way, without even identifying the type of information
which they contained. That shows that the Council carried out
a very mechanical and blanket assessment of the scope of the
public interest exception relating to international relations,
contrary to the requirements set out in the case-law. It is impossible
for the applicant, on the basis of such a response, to assess
whether the Council applied that exception correctly.
32 In addition the applicant maintains that when a rejection
of an application for access is confirmed on grounds other than
those given in the initial refusal and, in effect, contradictory,
the reasons for that change must be explained clearly and unequivocally
in the decision on the confirmatory application.
33 The Council claims, first, that the use of the same terms
for describing identical situations does not necessarily amount
to rubber-stamping with a standard formula, but represents a
justified and even necessary practice when the reports in question
share common features.
34 Secondly, the Council points out that the applicant is a practitioner
and researcher working in the field of asylum and immigration
law. Taking into account, too, the information contained in the
application, it is therefore legitimate to assume that he is
aware of the typical content of joint reports on third countries.
It was not therefore necessary to describe to him in detail the
nature of the information contained in those reports.
35 Thirdly, the Council maintains that the reasons given for
refusing access to CIREA reports and reports drawn up for CIREA,
both in the initial reply from the Secretary-General and in the
contested decision, are not contradictory but perfectly consistent,
inasmuch as they refer to sensitive information contained in
the reports, disclosure of which to the public could damage the
European Union's relations with third countries. Citing Case
C-466/93 Atlanta Fruchthandelsgesellschaft and Others II 
ECR I-3799, paragraph 16, the Council submits that the statement
of reasons given in the contested decision discloses the essential
objective pursued by the Council and that it is therefore sufficient.
Findings of the Court
36 The duty to give reasons for a decision has two purposes:
to allow interested parties to know the justification for the
measure so as to enable them to protect their rights and to enable
the Community judicature to exercise its power to review the
legality of the decision (see, in particular, Case C-350/88 Delacre
and Others v Commission  ECR I-395, paragraph 15, and Case
T-105/95 WWF UK v Commission  ECR II-313, paragraph 66).
Whether a statement of reasons satisfies those requirements is
a question to be assessed with reference not only to its wording
but also to its context and the whole body of legal rules governing
the matter in question (Case C-122/94 Commission v Council 
ECR I-881, paragraph 29).
37 It is also clear from the case-law of the Court of First Instance
that the Council is obliged to consider, in the case of each
document to which access is sought, whether, in the light of
the information available to the Council, disclosure is in fact
likely to undermine one of the facets of public interest protected
by the first category of exceptions (Case T-174/95 Svenska Journalistförbundet
v Council  ECR II-2289, paragraph 112).
38 It follows that in its statement of reasons for its decision
the Council must show that it has carried out a concrete assessment
of the documents in question.
39 On this point, the Council claims that the CIREA reports and
reports drawn up for CIREA all belong to the same category in
that they share common features. That argument cannot be accepted.
Those reports contain information relating to various periods
between 1994 and 1998 and concern very different third countries,
such as Zaïre and China, with whom the European Union has
changeable diplomatic relations.
40 Moreover, examination of the 10 reports drawn up for CIREA
by the Danish authorities, to which the applicant has had access,
shows that the information contained in those documents varies
considerably, not only in its nature (description of the political,
economic, legal and military system, the human rights situation,
relations between clans or minorities, level of public safety
and so forth), but also in its degree of sensitivity.
41 It is not clear from the statement of reasons for the contested
decision, in which the Council confined itself to indicating
that the reports contained sensitive information disclosure of
which to the public could damage the European Union's relations
with the countries concerned (see paragraph 15 above), that the
Council had examined each of the documents individually, however
briefly, or even in groups having the same essential features.
42 Moreover, it appears from the documents before the Court that
access to four other reports drawn up for CIREA was refused although,
according to the Council, their content was very similar to that
of the 10 Danish reports referred to above. That decision was
taken without the Council putting forward any reasons which would
have enabled the applicant to understand why there was a risk
that disclosure of those four reports might have a different
impact on the diplomatic relations of the European Union.
43 In those circumstances, even though the Council maintains
that it analysed each individual document requested, the statement
of reasons for the contested decision contains no evidence of
any such analysis.
44 Moreover, when a reply confirms the rejection of an application
on the same grounds, it is appropriate to consider the sufficiency
of the reasons given in the light of all the exchanges between
the institution and the applicant, taking into account also the
information available to the applicant about the nature and content
of the requested documents.
45 Whilst the context in which a decision is adopted may make
the requirements to be satisfied by the institution as regards
the statement of reasons lighter, it may, conversely, also make
them more stringent in certain circumstances.
46 That is the case where, during the procedure in which application
is made for access to documents, the applicant puts forward factors
capable of casting doubt on whether the first refusal was well
founded. In those circumstances, the requirements governing the
statement of reasons mean that the institution is obliged, when
replying to a confirmatory application, to state why those factors
are not such as might warrant a change in its position. Otherwise,
the applicant would not be able to understand the reasons for
which the author of the reply to the confirmatory application
has decided to confirm the refusal on the same grounds.
47 In the present case, the applicant, in his confirmatory application,
set out, in connection with CIREA reports, the arguments which
led him to believe that the fears expressed by the Secretary-General
of the Council concerning the release of the documents in question
were unjustified. In the contested decision, however, the Council
did not give any reason for dismissing those arguments such as
would enable the applicant to understand the reasons for maintaining
48 It follows that the contested decision does not satisfy the
requirements governing the statement of reasons under Article
190 of the Treaty and must be annulled.
Plea of breach of Decision 93/731, in that the Council did not
grant partial access to the documents
Arguments of the parties
49 The applicant maintains that, in dismissing the possibility
of granting partial access to the documents, the Council disregarded
the principle of proportionality. If the disclosure of certain
reports could undermine the protection of the public interest,
the Council should at least grant access to those parts of the
reports which are not covered by the exception. That solution
is necessary to ensure the widest possible access to Council
50 As regards the list of contact persons, the Council could
have given effect to the applicant's right of access to that
list without thereby undermining the proper functioning of the
information exchange network on asylum cases established between
the Member States' authorities by merely removing direct telephone
numbers and e-mail addresses.
51 The Council denies that it was possible to give partial access
to the documents. It bases its decision, first of all, on an
interpretation which it claims is consistent with the letter
and spirit of Decision 93/731: that decision refers to a right
of access to `documents' of the Council, not to information held
by the Council, and the objective of that decision is to allow
the public to have access to the Council's documents, not to
the information contained in them.
52 Secondly, the Council relies on the features of the reports
requested by the applicant. It maintains that it cannot give
access to certain passages of those documents because the difficulty
lies precisely in determining which passages do not give rise
to a risk of causing problems in relations with certain third
countries. The only way to obviate any such risk would be to
enter into consultations with the country concerned, which would
obviously be likely to jeopardise the interests which the Council
53 Concerning the list of contact persons, it states that, when
a document contains information emanating from several Member
States, the fact of limiting access to the data communicated
by some of them would isolate the others with regard to public
Findings of the Court
54 It must be borne in mind, at the outset, that the Court of
First Instance has already held that Article 4(1) of Decision
93/731 must be interpreted in the light of the principle of the
right to information and the principle of proportionality. It
follows that the Council is obliged to examine whether partial
access should be granted to the information not covered by the
exceptions (Case T-14/98 Hautala v Council  ECR II-0000,
55 Moreover, the principle of proportionality would allow the
Council, in particular cases where the size of the document or
the passages to be removed would give rise to an unreasonable
amount of administrative work, to balance the interest in public
access to those fragmentary parts against the burden of work
so caused. The Council could thus, in those particular cases,
safeguard the interests of good administration (Hautala v Council,
cited above, paragraph 86).
56 In any event, as pointed out in paragraph 37 above, the Council
is obliged to carry out a specific assessment of the risk that
disclosure of the documents to which access is sought could entail
for the public interest. In those circumstances, the removal
of sensitive passages from the documents should not necessarily
involve an intolerable burden of work for the institution.
57 Moreover, the Council's arguments based on the features of
the reports requested by the applicant and the difficulty of
determining in this case which passages are not covered by the
exception cannot be accepted. Examination of the 10 Danish reports
drawn up for CIREA to which the applicant was granted access
shows that a large part of the information which they contain
is made up of descriptions and findings of fact which clearly
do not fall under the exception relied on.
58 With regard to the refusal to grant access to the list of
contact persons, the applicant expressly confirmed in his observations
to the Council's response of 18 May 1999 that he does not wish
to have access to the telephone numbers and e-mail addresses
of the persons on the list.
59 In relation to the argument that partial access, confined
to the data communicated by certain Member States, would lead
to isolating the others with regard to public opinion, it need
merely be pointed out that the Council has not shown how such
considerations can fall within the exceptions provided for in
Article 4 of Decision 93/731.
60 It follows from all the foregoing that, in refusing to grant
access to passages in the documents requested that are not covered
by the public interest exception on which the Council relies,
the Council applied that exception in a disproportionate manner.
61 In those circumstances, the contested decision must be annulled
without there being any need for the Court to address the question
whether the plea of breach of the fundamental principle that
access should be given to documents is well founded.
62 In so far as the Court considers that it has sufficient information
to uphold the applicant's claims and to annul the contested decision
in its entirety, it does not consider it necessary to ask the
Council to furnish the documents in question to it.
63 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been applied
for in the successful party's pleadings. Since the Council has
been unsuccessful, it must be ordered to pay the costs, having
regard to the applicant's pleadings.
On those grounds,
THE COURT OF FIRST INSTANCE
1. Annuls the Council's decision of 28 September 1998, as amended
by the decision of 18 May 1999, refusing the applicant access
to certain reports drawn up by the Centre for Information, Discussion
and Exchange on Asylum, to certain reports of joint missions
or reports of missions undertaken by Member States sent to the
Centre, and to the list of contact persons in the Member States
involved with asylum cases;
2. Orders the Council to pay the applicant's costs and to bear
its own costs.