EUROPEAN COMMISSION
Brussels, 6.7.2016
C(2016) 4377 final
Mr James PANICHI
MLex
Rue de la Loi 67
B - 1040 Brussels
Copy by email:ask+request-2672-
xxxxxxxx@xxxxxxxx.xxx
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2016/1143
Dear Mr Panichi,
I refer to your message of 21 April 2016, registered on the same day in which you submit
a confirmatory application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 ('Regulation 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application of 8 March 2016, dealt with by the Commission's Legal
Service you requested access to
legal advice prepared in April, or June, or July 2015 by
the European Commission's legal services and/or the legal services head, Luis Romero
Requena, dealing with a request from Belgian authorities to lift the immunity of OLAF
Director-General, Giovanni Kessler.
The Commission has identified the following documents, as falling into the scope of your
request:
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
1. Note dated 5 December 2014 from the Legal Service and the Secretariat-General
to the President and Vice-President Georgieva on the subject
'Demande de levée
d'immunité présentée par le juge d'instruction', composed of the main document
and three annexes (annex 3 includes the cover note and the note to the file);
2. Legal Service note to the file of 9 September 2015;
3. Note dated 9 October 2015 from the Legal Service to the Commission President
on the subject
'Request for a waiver of immunity'.
In its reply of 21 April 2016, the Legal Service explained that identification of the above-
mentioned documents was based on a broad interpretation of your initial request, i.e.:
without taking into consideration the temporal limits indicated therein ([l]
egal advice
prepared in April, or June, or July 2015).
In the same letter, the Legal Service refused access to documents (1) – (3), based on the
exceptions provided for in Article 4(2), second indent (protection of legal advice) and
Article 4(2), third indent (protection of the purpose of investigations) of Regulation
1049/2001.
Through your confirmatory application you request a review of this position.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I regret to inform you that I have to confirm the initial decision of
the Legal Service to refuse access to the documents requested, on the basis of the
exceptions in the second and third indents of Article 4(2) of Regulation 1049/2001,
concerning, respectively, the protection of legal advice and the protection of the purpose
of investigations. The reasons are set out below.
2.1 Protection of the purpose of investigations
Article 4(2), third indent of Regulation 1049/2001 provides that [t]
he institutions shall
refuse access to a document where disclosure would undermine the protection of: […]
the purpose of inspections, investigations and audits.
In your confirmatory application you do not question the applicability of the above-
mentioned exception to the requested documents (instead, the argumentation seems to be
focused solely on the issue of the overriding public interest, which will be addressed in
point 4 of this decision). Following my analysis, I share the justification and reasoning
provided by the LS in its initial reply of 21 April 2016.
2
Documents (1) – (3)
have been prepared by the Legal Service in connection with the
investigation of a complaint lodged with the Belgian judicial authorities within a pending
criminal procedure. In its course, the Belgian Federal Prosecutor has requested the
Commission to waive the immunity of OLAF's Director-General. In consequence, the
Commission has taken the decision to partially waive the immunity of OLAF's Director-
General in order to allow the Belgian authorities to continue their investigation. That
investigation, as mentioned by the Legal Service in its initial reply, is fully ongoing and
therefore is subject to the obligation of strict confidentiality under the applicable
provisions of national criminal law (
'secret de l’instruction').
In the light of the above, public disclosure of the documents requested would undermine
the confidentiality of the ongoing judicial investigation and affect the legitimate rights
and the presumption of innocence of the person concerned. Consequently, there is an
actual and non-hypothetical risk that the interest protected by the exception provided for
in the third indent of Article 4(2) of Regulation 1049/2001 would be undermined through
public release of the documents in question.
Given that the investigation activities in question are still open and ongoing, the legal and
factual circumstances relating to the documents requested did not change and
consequently, the justification provided by the Legal Service in the initial reply of 21
April 2016 is still valid and applicable.
I conclude, therefore, that access to documents (1) – (3) must be denied on the basis of
the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001.
2.2 Protection of the legal advice and court proceedings
Article 4(2), second indent of Regulation 1049/2001 provides that [t]
he institutions shall
refuse access to a document where disclosure would undermine the protection of: […]
court proceedings and legal advice
In your confirmatory application you do not question the applicability of this exception
to the requested documents (1) – (3) (the argumentation seems rather to be focused on the
issue of the overriding public interest, which I will address in point 4 of this decision). I
would like therefore to confirm the justification and reasoning provided by the Legal
Service in its initial reply of 21 April 2016.
Public disclosure of documents (1) – (3)3 would indeed undermine the protection of legal
advice, as provided for in the second indent of Article 4(2) of Regulation 1049/2001,
which, as recognised by the case-law, must be construed as aiming to protect the
Institution's interest in seeking legal advice and receiving frank, objective and
comprehensive advice4.
3 With the exception of annexes n° 1 and n° 2 to document (1) which are annexes to legal advice (and
thus part of it) but not themselves legal advice.
4 Judgment of the Court (Grand chamber) of 1 July 2008 in joined cases C-39/05Ρ and C-52/05Ρ,
Kingdom of Sweden and Maurizio Turco v Council of the European Union, (ECLI:EU:C:2008:374),
paragraph 42.
3
In the case at hand, public release of the documents requested would reveal internal
opinions in a matter of a highly sensitive nature
drafted under the responsibility of the
Legal Service and the Secretary-General (document (1)) and/or intended exclusively for
the President and the Members of the Commission (documents (1) and (3)) and/or for
internal discussion within the Legal Service (document 2). In addition, the contents of
document (1) is not only of a particularly sensitive nature but have also a particularly
wide scope that goes beyond the context of the specific file at hand.
Disclosure of documents (1) – (3) would clearly have a serious impact both on the Legal
Service's capacity to assist the Commission in this highly sensitive matter and on the
Commission's interest in seeking and receiving frank, objective and comprehensive legal
advice, thus depriving the College of an essential element in the process of performing its
tasks.
In addition, judicial proceedings concerning the Commission decision to (partially) waive
the immunity have been commenced by Mr Kessler (Case T-251/16,
Director General of
OLAF v Commission). Therefore, disclosure of the requested documents, which are
inextricably linked to the subject-matter of that pending case, could seriously undermine
the Commission's position in that litigation, breaking the fundamental principle of
equality of arms.
In the light of the above and given that the legal and factual circumstances5 relating to the
potential release of documents (1) – (3) did not change, the justification provided by the
Legal Service in the initial reply of 21 April 2016 is still valid and applicable.
In the light of the above, access to the documents requested6, must be denied on the basis
of the exception laid down in the second indent of Article 4(2) of Regulation 1049/2001.
3.
PARTIAL ACCESS
I have also examined the possibility of granting partial access to documents requested in
accordance with Article 4(6) of Regulation (EC) No 1049/2001. However, partial access
is not possible, as document (2) is fully covered by the exceptions provided for in the
second and third indents of Article 4(2) of Regulation 1049/2001.
4.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) of Regulation 1049/2001 must be waived if
there is an overriding public interest in disclosure. Such an interest must, firstly, be
public and, secondly, outweigh the harm caused by disclosure.
5 Other than opening of the case T-251/16 mentioned above.
6 With the exception of annexes n° 1 and n° 2 to document (1) which are annexes to legal advice (and
thus part of it) but not themselves legal advice.
4
In your confirmatory application you argue that
the right for the public to know such an
important decision was made and to discount any suggestion that the decision was a
political one without a legal foundation requires that these [three]
documents be released
immediately.
Whilst I understand that there can be a public interest in obtaining access to the
documents in question, I consider in this case that any possible public interest in
transparency cannot outweigh the public interest in protecting the purpose of
investigations, court proceedings and legal advice falling under the exceptions provided
for in the second and third indents of Article 4(2) of Regulation 1049/2001.
The fact that the documents relate to an administrative procedure rather than a legislative
act, for which the Court of Justice has acknowledged the existence of wider openness7,
provides further support to this conclusion.
With regard to your argument concerning the transparency of the process, I would like to
refer to the judgment in the
Strack case8, where the Court of Justice ruled that in order to
establish the existence of an overriding public interest in transparency, it is not sufficient
to merely rely on that principle and its importance but that an applicant has to show why
in the specific situation the principle of transparency is in some sense especially pressing
and capable, therefore, of prevailing over the reasons justifying non-disclosure9.
In consequence, I consider that, in this case, there is no overriding public interest that
would outweigh the interest in safeguarding the purpose of investigation and court
proceedings and legal advice protected by the second and third indents of Article 4(2) of
Regulation 1049/2001.
7 Judgment of the Court (Grand Chamber) of 29 June 2010 in case C-139/07P,
Commission v
Technische Glaswerke Ilmenau Gmbh, (ECLI:EU:C:2010:376), paragraphs 53-55 and 60.
8 Judgment of the Court of Justice of 2 October 2014 in case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 128.
9 Judgment of the Court of Justice of 2 October 2014 in case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 129.
5
5.
MEANS OF REDRESS
I would like to draw your attention to the means of redress that are available against this
decision, that is, judicial proceedings and complaints to the Ombudsman under the
conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
6
Document Outline