JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
7 February 2002 (1)
(Transparency - Council Decision 93/731/EC on public access
to Council documents - Refusal of an application for access -
Protection of the public interest - International relations -
Manifest error - Partial access)
In Case T-211/00,
Aldo Kuijer, residing in Utrecht (Netherlands), represented
by O.W. Brouwer and T. Janssens, lawyers, with an address for
service in Luxembourg,
Council of the European Union, represented by M. Bauer
and M. Bishop, acting as Agents,
APPLICATION for annulment of the Council's decision notified
to the applicant by letter of 7 June 2000 refusing him access
to certain documents from the Centre for Information, Discussion
and Exchange on Asylum ('CIREA) which were requested under Council
Decision 93/731/EC of 20 December 1993 on public access to Council
documents (OJ 1993 L 340, p. 43),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of: P. Mengozzi, President, V. Tiili and R.M. Moura
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the
hearing on 12 July 2001,
gives the following
- Legal Background
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), designed to establish the principles
governing access to the documents held by them. The Code of Conduct
contains inter alia the following principle: 'The public
will have the widest possible access to documents held by the
Commission and the Council.
- It also provides: 'The Commission and the Council will severally
take steps to implement these principles before 1 January 1994.
- 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).
- Article 1(1) of Decision 93/731 provides that '[t]he public
shall have access to Council documents under the conditions laid
down in this Decision.
- Article 4 states:
'1. 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 and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural
or legal person who supplied any of the information contained
in the document or as required by the legislation of the Member
State which supplied any of that information.
2. Access to a Council document may be refused in order to
protect the confidentiality of the Council's proceedings.
- 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 the Council.
- Article 7(1) and (3) provide:
'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 ...
- The second paragraph of Article 1 of the Treaty on European
Union, as amended by the Treaty of Amsterdam, provides:
'This Treaty marks a new stage in the process of creating
an ever closer union among the peoples of Europe, in which decisions
are taken as openly as possible and as closely as possible to
- The applicant is a university lecturer and researcher in
asylum and immigration matters. By letter of 3 July 1998 addressed
to the General Secretary 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 request related to certain reports drawn up by or with CIREA
and reports of any joint missions or reports on missions carried
out by Member States in third countries and sent to CIREA. The
applicant also requested the list drawn up by or with CIREA,
of the contact persons in the Member States involved with asylum
cases ('the list of contact persons) and any subsequent changes
to that list.
- The Secretary-General replied to the applicant by letter
of 28 July 1998, stating 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, Zaire, Nigeria and Vietnam.
He nevertheless rejected the application for access to those
documents and to the list of contact persons, relying on Article
4(1) of Decision 93/731. He explained that disclosure of the
list might 'put the security and private life of individuals
at risk by giving rise to harassment and personal threats. With
regard to reports drawn up for CIREA, the Secretary-General informed
the applicant that such documents did not exist.
- 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 intends to keep confidential e.g. the reports on countries
like Nigeria, Iran and Iraq, while it can hardly be argued that
relations between the Union and those countries are 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.
- By letter of 28 September 1998, the Secretary-General sent
to the applicant the Council's decision rejecting his confirmatory
application. The letter was 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]. Afterexamination 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 [the
country concerned], which was provided by the Heads of the European
Union Member State Missions in that country. 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]
(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.
- 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. He was informed that, 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 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).
- On 4 December 1998, the applicant brought an action for annulment
of the Council's decision of 28 September 1998 refusing him access
to the documents mentioned.
- By letter of 18 May 1999, the General Secretariat sent the
applicant a fresh reply from the Council in response to the confirmatory
application of 25 August 1998. In that reply the Council indicated
that a list of contact persons did exist andappeared in document
5971/2/98 CIREA 18. In consequence, it admitted that the decision
rejecting the confirmatory application, which was notified by
letter of 28 September 1998, was wrong on that point.
- 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 whom
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 it 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.
- By judgment of 6 April 2000 (Case T-188/98 Kuijer
v Council  ECR II-1959, 'the Kuijer judgment)
the Court of First Instance annulled the decision of 28 September
1998, as amended by the decision of 18 May 1999.The Court found,
first, that the decision did not satisfy the requirement to state
reasons under Article 190 of the EC Treaty (now Article 253 EC)
and, second, that, in refusing to grant access to passages in
the documents requested that were not covered by the public interest
exception laid down in Article 4(1) of Decision 93/731, the Council
had applied that exception in a disproportionate manner.
- Following the Kuijer judgment, the Council adopted
a further decision on 5 June 2000 ('the contested decision).
The Council explained that the reports referred to in the application
for access had certain features in common which made it necessary
to treat them in the same way for the purposes of Decision 93/731;
that they contained very detailed information on the general
political situation and the protection of human rights in third
countries, which could be construed as criticism of those countries;
that the reports were potentially damaging to the European Union's
relations with those countries and that assessment of the possible
consequences of their disclosure for those relations was a matter
falling within its political responsibilities; that in the present
case there was a real risk that disclosing the reports would
be prejudicial to relations with third countries and could jeopardise
any improvement in the situation of asylum seekers from those
countries and create problems with other states in a similar
situation to the countries in question. The Council then went
on to review briefly the contents of each of the documents at
issue and concluded that, with the exception of the list of contact
persons, which was forwarded to the applicant by letter of 9
October 2000, withoutthe names and telephone and fax numbers
of those persons, none of them could be disclosed to him. The
documents were covered by the exception in Article 4(1) of Decision
93/731, since disclosing them could undermine the European Union's
relations with the country concerned and, in certain cases, endanger
the people who had provided some of the information they contained.
Procedure and forms of order sought by the parties
- By application lodged at the Registry of the Court of First
Instance on 11 August 2000, the applicant brought the present
- The applicant waived his right to lodge a reply and the written
procedure closed on 5 January 2001. Upon hearing the report of
the Judge-Rapporteur, the Court of First Instance decided to
open the oral procedure.
- By order of 20 March 2001, in accordance with Article 65(b),
Article 66(1) and the third paragraph of Article 67(3) of the
Rules of Procedure of the Court of First Instance, the Court
called on the defendant to produce the documents at issue but
ruled that those documents would not be communicated to the applicant
in the course of these proceedings. That request was complied
- The parties presented oral argument and gave replies to the
Court's questions at the hearing on 12 July 2001.
- The applicant claims that the Court should:
- annul the contested decision;
- require the Council to produce all the documents at issue;
- order the Council to pay the costs, including costs incurred
by any interveners.
- The Council contends that the Court should:
- dismiss the application;
- order the applicant to pay the costs.
- The applicant is seeking annulment of the contested decision
in so far as it refuses his request for access to certain CIREA
documents. The following documents are requested:
(a) joint Common Foreign and Security Policy (CFSP) reports,
analyses or evaluations drawn up by or with CIREA between 1994
and 1998, dealing with the situation in third countries or regions
from which a large number of asylum seekers originate or in which
(b) all reports concerning joint missions or reports sent
to CIREA by one or more Member States concerning missions carried
out in third countries by that Member State or those Member States;
(c) the list of contact persons without their telephone or
fax numbers and any subsequent changes to the list.
- The applicant puts forward three pleas in law in support
of his application. By the first plea he alleges infringement
of Decision 93/731, in particular of Article 4(1) thereof, and
of the principle of proportionality. The second plea concerns
infringement of the obligation to state reasons. By the third
plea he alleges infringement of a fundamental principle of Community
law, according to which European citizens must be given the widest
and most complete access possible to the documents of the Union.
- It is appropriate to consider the plea alleging breach of
Decision 93/731, in particular Article 4(1) thereof, and of the
principle of proportionality.
Arguments of the parties
The reports at issue
- The applicant disputes that the reports at issue have certain
common features which enable them to be treated in the same way
for the purposes of Decision 93/731 and invokes in that regard
paragraphs 39 and 40 of the Kuijer judgment.
- In his view, those reports contain factual information rather
than criticism of the third countries concerned relating to sensitive
issues such as their general political situation and the protection
of human rights.
- Thus, there is no risk that disclosure of the reports concerned
would prejudice the European Union's relations with those countries.
The applicant submits in that regard, first, that relations between
the Union and a number of those countries are already difficult,
or even non-existent, as a result of action taken by the Union
the field of human rights. Second, the political situation
in a number of the countries in question has changed significantly
since the reports were drawn up.Third, the Council has not explained
the nature of the alleged risk. Fourth, the Council has failed
to indicate, for each of the documents concerned, how disclosure
would entail a specific and real risk of prejudicing political
relations with the third country concerned.
- Finally, the applicant argues that the contested decision
infringes the principle of proportionality and that the Council
incorrectly assesses the danger that disclosure of the reports
at issue would represent for international relations, in particular,
the Council has not examined the possibility of granting partial
access to those reports.
- The Council denies that it has infringed either Article 4(1)
of Decision 93/731 or the principle of proportionality.
- First, as a preliminary point, the Council states that, as
it indicated in the third paragraph of the contested decision,
the reports on the third countries concerned in this case have
common features which make it necessary to treat them in the
same way for the purposes of Decision 93/731.
- The Council disagrees on that point with the Court's assessment
of the facts in the Kuijer judgment. It considers that
the Court misassessed the facts in the case as regards the possibility
of granting access to the passages in the reports requested that
might not be covered by the exception.
- It also disagrees with the Court's argument based on the
examination of the 10 reports drawn up for CIREA by the Danish
authorities (paragraphs 40 to 42 and 57 of the judgment). It
explains that, in paragraph 57 of the Kuijer judgment,
the Court apparently infers from the 10 Danish reports drawn
up for CIREA, to which access was granted and a large part of
which consists of descriptions and findings of fact which clearly
do not fall under the exception, that the reports which had not
been released had a very similar content and that it would therefore
have been possible to blank out the sensitive passages. The Council
submits that this reasoning is illogical and argues that the
documents released did not contain anything which would have
justified their being withheld in whole or in part. If documents
of a similar type and nature are not released in whole or in
part, it is because there are essential differences and, consequently,
the documents do not have the same impact on international relations.
- In that regard, the Council observes that, as the Court of
First Instance itself acknowledged in paragraph 37 of the Kuijer
judgment, it must consider each document on the basis of its
actual content. The fact that, out of a group of documents sharing
certain common features, some were released and others were not
demonstrates precisely that the Council complied with that obligation.
- Furthermore, it argues that a Member State's assessment of
the harm which could be caused by the release of a document which
it has written itself is not necessarilythe same as in the case
of a joint report. The Council submits that, in the case of a
joint report, a compromise may well have to be found between
the differing views of its 15 members.
- Finally, it points out that all the reports in question were
drawn up in the context of the political relations of the European
Union and of various Member States with third countries. The
joint reports were all approved by the Political Committee, as
part of the tasks conferred upon it by Article 25 of the Treaty
on European Union, within the framework of Title V thereof.
- Second, the Council, taking as its basis paragraph 71 of
the judgment in Case T-14/98 Hautala v Council
 ECR II-2489 ('the Hautala judgment), submits that
the contested decision was reached after it had carried out a
thorough assessment of the possible consequences that disclosure
of the reports concerned could have for the international relations
of the European Union, which are among the political responsibilities
conferred on the Council by Title V of the Treaty on European
Union, and for the smooth operation of the Union's asylum policy.
- Third, the Council argues that, on the basis of the criteria
for judicial review laid down by the Court of First Instance
in paragraph 72 of the Hautala judgment, there is no reason
to fault the assessment which led it to conclude that all the
reports in question were covered by the exception referred to
in Article 4(1) of Decision 93/731 relating to the protection
of the public interest.
- It asserts that all the reports at issue contain very detailed
factual information about the situation prevailing in certain
third countries, in particular so far as human rights are concerned.
On that point, the reports are thus very similar to the document
at issue in Hautala. Furthermore, like that document,
the reports at issue here were produced for internal use only
and not with a view to being made public. The Council acknowledges
that that fact, in itself, is not a proper reason for refusing
access to a document but it states that documents drawn up for
internal use are more freely drafted and therefore contain statements
which might create tension with some third countries.
- In the case giving rise to the Hautala judgment, those
circumstances were sufficient for the Court of First Instance
to confirm that there was no reason to fault the Council's assessment
(Hautala, paragraph 74). However, the contested decision
contains a much more detailed statement of reasons than the decision
at issue in that case.
- The Council also observes that the arguments which the applicant
puts forward in paragraphs 21 to 42 of his application concern,
in substance, the factors by reference to which the Council assessed
the possible consequences of the release of the reports in question,
in particular the level of protection of the public interest
to be safeguarded or the severity of the damage which could be
caused by releasing the documents in question and the likelihood
that such damage would actuallyoccur. Since the relevance of
those factors is not disputed, the Council concludes that the
contested decision is not defective on grounds of misuse of powers
or indeed manifest error of assessment.
- As to the applicant's argument that it follows from the case-law
that disclosure of a document may be refused only if the Council
provides evidence that disclosure is in fact likely to cause
actual harm to relations with third countries, the Council contends
that particularly in the area of international relations, it
would be excessive to require the Council to produce 'hard evidence
of the likelihood that actual harm would in fact be caused. Such
evidence would be available only if documents similar to the
ones at issue had actually been previously released by the Council
and their release had in fact caused actual harm to the European
Union's relations with third countries.
- At the hearing, the Council also disputed the relevance of
the passage of time in deciding whether or not a document may
be released. It argued that disclosure of a document which no
longer reflects the current situation in the country in question
could create problems with that country, since it might take
the view that this gives an inaccurate picture of its current
- Further, the Council stated that public access to the reports
in question might have an impact on the very existence of that
type of report. Since the language in which they are drafted
is clear and forthright, their release might endanger the persons
who provided the information.
- Finally, the Council contests the claim that it failed to
consider the possibility of granting partial access to the documents
at issue. It submits that the partial release of the list of
contact persons is proof to the contrary and that the contested
decision is consistent with the findings in the Kuijer
The list of contact persons
- The applicant observes that, in contending that it is for
the Member States to decide whether the names of national officials
are to be made publicly available, the Council appears to be
seeking to evade its obligations of transparency and openness.
He also disputes the Council's submission that, if such details
were disclosed, the Member States would not provide information
of that kind in the future. In any event, coordination between
Member States and between Member States and the Council or the
exchange of information between administrations cannot automatically
take precedence over openness and transparency, which are of
fundamental interest for citizens.
- The Council contends that it partially acceded to the request
made by the applicant, who had confirmed that he did not wish
to have access to the telephoneand fax numbers of the persons
on the list of contact persons. As to those persons' names, is
quite apparent from the context of the contested decision that
the arguments put forward in the decision notified to the applicant
on 18 May 1999 have not ceased to be valid.
- The Council states that it was not convinced by the applicant's
arguments in the proceedings resulting in the Kuijer judgment,
reiterated at paragraph 77 of his application in this action.
The Council explains that it has decided to maintain its position
on that point and to refuse to grant access to certain parts
of the document on the ground that their disclosure could undermine
the public interest represented by the functioning of the exchange
of information and the coordination between Member States in
the field of asylum matters, which the Council has a duty to
protect under Article 4(1) of Decision 93/731 (order of the President
of the Court of First Instance in Case T-610/97 R Carlsen
and Others v Council  ECR II-485, paragraph
- At the hearing, in response to a question put by the Court,
the Council explained that it dismissed the possibility of granting
access to the persons' names and to other information already
made available to the public by certain Member States, on the
ground that different stances taken by the latter in that regard
could be seen as evidence of a degree of dissension between its
Findings of the Court
- It is first necessary to point out that the principle of
transparency is intended to secure a more significant role for
citizens in the decision-making process and to ensure that the
administration acts with greater propriety, efficiency and responsibility
vis-à-vis the citizens in a democratic system. It helps
to strengthen the principle of democracy and respect for fundamental
rights (see, to that effect, Case T-309/97 Bavarian Lager
v Commission  ECR II-3217, paragraph 36).
- Moreover, when the Council decides whether the public interest
may be undermined by releasing a document, it exercises a discretion
which is among the political responsibilities conferred on it
by provisions of the Treaties. In those circumstances, review
by the Court of First Instance must be limited to verifying whether
the procedural rules have been complied with, the decision at
issue is properly reasoned and the facts have been accurately
stated, and whether there has been a manifest error of assessment
of the facts or a misuse of powers.
- Next, it is appropriate to set out the conditions in which
the public may be denied access to a document.
- First, the legal rule is that the public is to have access
to the documents of the institutions and the power to refuse
access is the exception. A decision denying access is valid only
if it is based on one of the exceptions provided for in Article
4of Decision 93/731. According to settled case-law, these exceptions
must be construed and applied restrictively so as not to defeat
the general principle enshrined in that decision (see Case T-174/95
Svenska Journalistförbundet v Council 
ECR II-2289, paragraph 110, and, in relation to the analogous
provisions of Commission Decision 94/90/ECSC, EC, Euratom of
8 February 1994 on public access to Commission documents (OJ
1994 L 46, p. 58), Case T-105/95 WWF UK v Commission
 ECR II-313, paragraph 56).
- Second, it is apparent from the case-law that the Council
is obliged to consider in respect of each document requested
whether, in the light of the information available to it, disclosure
is in fact likely to undermine one of the public interests protected
by the exceptions provided for in Article 4(1) of Decision 93/731
(Svenska Journalistförbundet v Council, paragraph
112). If those exceptions are to apply, the risk of the public
interest being undermined must therefore be reasonably foreseeable
and not purely hypothetical.
- Third, 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. Consequently, the Council must
consider whether it is appropriate to grant partial access, confined
to material which is not covered by the exceptions. In exceptional
cases, a derogation from the obligation to grant partial access
might be permissible where the administrative burden of blanking
out the parts that may not be disclosed proves to be particularly
heavy, thereby exceeding the limits of what may reasonably be
- In the present case, the Court must therefore consider whether
the contested decision was adopted in accordance with the principles
set out above.
- In the contested decision, the Council found that the reports
at issue, first, had certain common features, which justified
treating them in the same way for the purposes of applying Decision
93/731. The Council went on to refuse access to the reports at
issue on the ground that, since their contents could be construed
as criticism of the third countries in question, in particular
as regards their political situation and the situation concerning
human rights, their disclosure could be prejudicial to the European
Union's relations with those countries.
- Although it is the case that some documents, such as reports
containing sensitive military information, may have sufficient
features in common for their disclosure to be refused, that is
not the case of the documents at issue. In such circumstances,
the mere fact that certain documents contain information or negative
statements about the political situation, or the protection of
human rights, in a third country does not necessarily mean that
access to them may be denied on the basis that there is a risk
that the public interest may be undermined. That fact, in itself
and in the abstract, is not a sufficient basis for refusing a
request for access.
- Rather, refusal of access to the reports in question must
be founded on an analysis of factors specific to the contents
or the context of each report, from which it can be concluded
that, because of certain specific circumstances, disclosure of
such a document would pose a danger to a particular public interest.
- As regards their contents, the reports at issue do not concern
directly or primarily the relations of the European Union with
the countries concerned. They contain an analysis of the political
situation and of the position as regards the protection of human
rights in general in each of those countries and also refer to
the ratification of international treaties concerning human rights.
They also contain more specific information on the protection
of human rights, the possibility of internal migration to escape
persecution, the return of nationals to their country of origin
and the economic and social situation.
- The information frequently relates to facts which have already
been made public, for example how the political, economic or
social situation has developed in the country concerned. Likewise,
the details relating to the protection of human rights are frequently
at one with facts that are common knowledge and their exposition
does not entail any politically sensitive appraisal on the part
of the Council.
- Thus, neither the nature nor the content of the reports is
consonant with the reasons put forward by the Council in the
contested decision to substantiate its refusal of the application
- Furthermore, as regards the context of the reports, the Court
must point out that certain factors may remove any risk of negative
repercussions which disclosure of the reports might entail for
the European Union's relations with the countries concerned.
- Thus, for example, a document may contain an analysis of
the situation as it was in a country at a given time and that
country may have undergone significant political changes. It
may also prove to be the case that the European Union itself,
through its institutions, in particular the Council and its presidency,
has already officially criticised the internal situation of the
countries concerned. Furthermore, the relations of the European
Union with those countries may be such that they cannot be damaged
by disclosure of any criticism made by the Union of the internal
situation of the countries or their respect for human rights.
Finally, the observations in the reports may be positive for
the country concerned.
- One or more of these various situations may be seen in several
of the reports at issue, in particular, by way of example, the
reports concerning the former Zaire (documents 4987/95 and 12917/1/95
REV 1) and Sri Lanka (document 4623/95).
- Moreover, the argument which the Council has based on paragraphs
73 and 74 of the Hautala judgment is not relevant. In
that case, the Court found that there was no reason to fault
the assessment made by the Council, which had refused to grantaccess
to a report of a Council working party on conventional arms exports,
containing, in particular, exchanges of views between the Member
States on the issue of respect for human rights in the country
of final destination of the arms. The Court confined itself to
stating that the Council's refusal to consider whether partial
access should be granted was in breach of Article 4(1) of Decision
93/731, interpreted in the light of the principle of the right
to information and the principle of proportionality.
- Unlike in the Hautala case, where the report at issue
was different from those in the present case, the Court has,
in this instance, ordered production of the reports at issue
and has been able to ascertain that disclosure of a large part
of their contents clearly cannot be regarded as likely to give
rise to tension with the third countries concerned.
- In those circumstances, the Council therefore committed a
manifest error of assessment in maintaining that the reasons
on which it relied in order to refuse access to the reports at
issue apply to the documents in their entirety.
- However, the Court acknowledges that public interest grounds
may justify preserving the confidentiality of certain passages
of several of the reports at issue, where, for example, the people
who have provided the information are cited, a refusal to disclose
those passages being, to that extent, legitimate. Nevertheless,
in such cases, in accordance with the case-law cited above, the
Council must grant partial access to the documents in question.
Granting partial access, confined to the passages not covered
by the exception in Article 4(1) of Decision 93/731, would have
enabled the Council to protect the public interest, which it
pleaded in support of its refusal to grant access to the entirety
of each of the reports at issue, without undermining the principle
of transparency and while observing the principle of proportionality.
- It is not for the Court to act in the place of the Council
and point out the passages in respect of which it amounted to
a manifest error of assessment to refuse the application for
access on the grounds relied on in the contested decision. However,
the Council must, when giving effect to this judgment, take account
of the Court's observations in that regard.
- Furthermore, as regards the list of contact persons, it must
be found that the Council refused to consider the possibility
of granting access to information, in particular the names of
those persons, which had been made available to the public by
certain Member States. It based its view on the fact that partial
access would reveal that the Member States had assessed the situation
in different ways and would publicise what might seem to be a
lack of agreement between its members. However, it did not establish
to what extent such a consideration might fall within the ambit
of the exceptions provided for in Article 4 of Decision 93/731.
- The Council thus erred in law when it refused the applicant's
request regarding the information on the list of contact persons
to which access is permitted in certain Member States. In refusing
him access to that information, the contested decision was in
breach of the principle of proportionality.
- It follows from the foregoing that the contested decision
must be annulled and it is not necessary to rule on the merits
of the other pleas put forward by the applicant.
- 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, having regard to the form of order
sought by the applicant, be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber),
1. Annuls the Council's decision of 5 June 2000 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 information contained
in the list of persons responsible in the Member States for asylum
applications to which access is permitted in certain Member States,
with the exception of those persons' telephone and fax numbers;
2. Orders the Council to pay the applicant's costs and
to bear its own costs.
Delivered in open court in Luxembourg on 7 February 2002.