PUBLIC LIMITE BG СЪВЕТНА ЕВРОПЕЙСКИЯСЪ ЮЗ. Брюксел,18януари2013г.(21.01) (OR.en) 17777/2/12 REV2 LIMITE INF207 API 115

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1 ConseilUE СЪВЕТНА ЕВРОПЕЙСКИЯСЪ ЮЗ Брюксел,18януари2013г.(21.01) (OR.en) PUBLIC 17777/2/12 REV2 LIMITE INF207 API 115 БЕЛЕЖКАПОТОЧКИ І/А От: Работнагрупа Информация До: Корепер(Ічаст)/Съвета предх.док.: 17776/12 Относно: Публичендостъпдодокументи - Потвърдителнозаявлениеотг-нMarcJohnston( 22/c/02/12) Приложено,наделегациитесеизпращапроектзаотговоротСъветанапотвърдително заявление 22/c/02/12следразглежданетомуотработнагрупа Информация на заседаниетоѝот14януари2013г. ДелегациитенаДания,Естония,Унгария,Словения,Финландияи Швецияпосочиха,чеще гласуватпротивпроектазаотговор. Дания,Естония,Унгария,Словения,Финландияи Швециянаправихаследнотоизявление: Неможемдасесъгласимнапълносаргументитеотносночувствителниякатоцялохарактер направнитестановища,нитосаргументитеотноснолипсатанависшобщественинтересот оповестяванетонаинформацията /2/12REV2 vn/nb 1 DGF2A LIMITE BG

2 Мнозинството от делегациите постигнаха съгласие резултатът от гласуването да бъде публикуван. Във връзка с това Комитетът на постоянните представители се приканва да предложи Съветът на следващото си заседание: - да отбележи като точка А от дневния си ред постигнатото съгласие по проекта за отговор, приложен към настоящия документ, като посочи, че делегациите на Дания, Естония, Унгария, Словения, Финландия и Швеция гласуват против, - да вземе решение за публикуване на резултатите от гласуването и на изложеното погоре изявление. Приложението е само на английски език /2/12 REV 2 vn/nb 2 DG F 2A LIMITE BG

3 ПРИЛОЖЕНИЕ DRAFT REPLY ADOPTED BY THE COUNCIL ON... TO CONFIRMATORY APPLICATION No 22/c/02/12, made by on 12 December 2012, pursuant to Article 7(2) of Regulation (EC) No 1049/2001, for public access to document 15018/12 The Council has considered this confirmatory application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145 of , p. 43) (hereafter "Regulation No 1049/2001") and Annex II to the Council s Rules of Procedure (Council Decision 2009/937/EU, Official Journal L 325, , p. 35) and has come to the following conclusion: Background 1. The applicant refers to document 15018/12, a contribution from the Council Legal Service on the adoption by the Council of conclusions and other documents not provided for in the Treaties. 2. In its reply dated 21 November 2012, the General Secretariat granted public access to the first paragraph of the document, but refused public access to the remaining parts pursuant to the exception set out in the second indent of Article 4(2) of Regulation No 1049/2001 (protection of legal advice). 3. In his confirmatory application dated 12 December 2012, the applicant claims that there is an overriding public interest in disclosure of document 15018/12. In that respect he refers inter alia to "a dangerous rise in the concentration of greenhouse gas pollution in the atmosphere and consequently a significant increase in average surface temperatures". He underlines the need for action by the Council and other institutions to address these issues and refers to the failure to endorse the Commission's climate and energy "2050 roadmaps" /2/12 REV 2 3

4 He believes that access to document 15018/12 "insofar as this aids clarification of the procedures followed or not followed by the Council" is in the public interest. The applicant also stresses that: "since the Union is a democracy founded on the basis of the rule of law, WWF considers that it is imperative for the Council - somehow at least - to account for its actions including its internal procedures to its citizens." 4. The Council has considered the confirmatory application in the light of the applicant's arguments and has concluded as indicated below. Assessment of the requested document 5. It is recalled that the legal advice contained in the requested document was not given in the context of any decision-making process. The wider access to documents which is established with regard to documents relating to legislative acts therefore does not apply. 6. The Council also notes that, although the purpose of Regulation No 1049/2001 is to ensure the widest possible access to documents for citizens, it equally provides for exceptions to that right, inter alia, where such access would undermine the protection of legal advice, unless there is an overriding public interest in disclosure, see Article 4(2), second indent, of Regulation No 1049/2001. That exception is engaged in this case. 7. The requested document contains legal advice. It examines in general terms the legal considerations relating to the adoption of Council conclusions and other documents not provided for in the Treaties. Consequently, and as underlined in the initial reply, the legal advice is of a very general nature and its scope is exceptionally broad. Disclosure of the contribution would also be detrimental to possible future general discussions on this issue within the Council. Moreover both the subject-matter of conclusions and the issues relating to their adoption can be matters of great sensitivity /2/12 REV 2 4

5 8. The European Court of Justice has specifically recognised the possibility to withhold legal advice of such particularly sen sitive and broad character 1. Disclosure of such a document would undermine the protection of legal advice and would create a particular risk that Member States and the Council would be deterred from requesting advice of such a sensitive and broad nature in similar situations in the future. 9. Furthermore, there is a real and concrete risk that Council conclusions, including the basis on which they were voted, could become subject to litigation before Union Courts as it has already happened in the past 2. The Legal Service s opinion could, if released, be invoked in such proceedings, which would negatively affect the capacity of the Council to defend its position in court. 10. By reference to the above the Council therefore confirms and reiterates what is already stated in its reply to the initial request for access as regards the applicability of the exception related to the protection of legal advice pursuant to Article 4(2), second indent, of Regulation No 1049/2001. No existence of an overriding interest in disclosure 11. The applicant refers to the public interest in protecting the climate and in introducing the relevant measures to that effect. The Council agrees that these are important values. However, disclosure of document 15018/12 would not have any bearing on the policies in this field. As already mentioned, the document contains legal advice, setting out the general legal considerations relating to the adoption of Council conclusions. It is not concerned with environmental issues. Moreover, the document sets out the legal opinion of the Council Legal Service - it is not an act of the Council and does not provide a basis on which the Council can be held accountable. 1 2 Judgment of the European Court of Justice of 1 July 2008 in joined cases C-39/05 and C- 52/05 P, Sweden and Turco/Council, point 69. See judgment of the European Court of Justice in case C-27/04, Commission/Council /2/12 REV 2 5

6 12. In the light of the above, and taking into account the particular sensitivity of the requested document, notably its exceptionally broad scope, the Council confirms that, on balance, the applicant has not demonstrated that an overriding public interest in disclosure exists. Remarks related to the legal reasoning 13. The confirmatory application also contains legal reasoning relating to Article 16(3) TEU and makes suggestions for a "potential solution to the general situation". It is not within the scope of a reply to a confirmatory application to address these remarks. The applicant also mentions that he is not aware of any public document which provides an explanation covering the questions he raises. In that regard the Council would like to inform the applicant that it recently replied to a question from members of the European Parliament regarding procedures for the adoption of Council conclusions. That reply which would appear to address the question raised by the applicant will be sent to the applicant by the General Secretariat for information. Conclusion 14. For the abovementioned reasons, the Council concluded that full public access to document 15018/12 has to be refused pursuant to Article 4(2), second indent, of Regulation No 1049/2001 (protection of the public interest as regards legal advice). 15. The Council also examined, pursuant to Article 4(6) of the Regulation, the possibility of granting extended partial access to the document under scrutiny and maintains the partial access given in the initial reply /2/12 REV 2 6