Transparency and environmental policy are two key issues in the upcoming European Parliament elections. In this regard, the General Court’s (‘the Court’) ruling on 13 March 2024 in the case of ClientEarth and Leino-Sandberg v Council provides some highly relevant insights. The Court annulled two Council decisions refusing to disclose the Council Legal Service’s opinion on the 2021 proposal to amend the Aarhus Regulation. While the Court’s critical approach to the Council’s justifications for secrecy is to be applauded, and the outcome of the case is certainly to be welcomed, this post suggests that an alternative route to reach the same conclusion would have been more desirable. The Court now seems to deliberately gloss over the document’s potential legal and political significance, turning a blind eye to the heated and ongoing debate on the Union’s (non-)compliance with the Aarhus Convention. Instead of downplaying the relevance of the document’s content, we argue that a more principled emphasis on demanding openness in the realm of environmental policy would have led the Court to the same outcome but would have also made the Union’s transparency framework more robust, in line with the objectives of the Aarhus Convention.
The EU and the Aarhus Convention
The requested document was produced by the Council’s Legal Service in the process of amending the Aarhus Regulation, which presents one aspect of the Union’s implementation of the Aarhus Convention. The Aarhus Convention is an international agreement, which the Union approved in 2005, aiming to improve public access to information, public participation in decision-making, and access to justice in environmental matters. The Aarhus Regulation, adopted in 2006, applies the various provisions of the Convention to the Union institutions. At the time, the internal review mechanism of Article 10 of the Regulation was considered the most promising creation, which allows non-governmental organisations and other natural and legal persons to request reconsideration of certain administrative acts or omissions by the adopting institution. Through this administrative review mechanism, the Union aimed to provide a legal avenue for applicants who do not qualify for standing under Article 263(4) TFEU due to the restrictive criteria of direct and individual concern. The Union thereby aimed to meet the requirements of Article 9(3) and (4) of the Aarhus Convention, which obliges to allow members of the public broad access to effective review mechanisms to challenge acts and omissions that contravene environmental law.
In 2011, the Aarhus Convention’s Compliance Committee (ACCC) already indicated that the restrictive scope of challengeable acts via the internal review mechanism of the Aarhus Regulation might not be sufficient to ensure the Union’s compliance with the Convention’s access to justice obligations. Due to the refusal of the Union courts to depart from their restrictive case law on the standing of natural persons under Article 263(4) TFEU established in Plaumann (and clarified later for example in Greenpeace, Danielsson, UPA, Jègo-Quéré, or Carvalho), as well as their narrow interpretation of relevant provisions of the Aarhus Regulation (for example in Stichting Milieu, LZ or Trianel), the ACCC eventually adopted a decision in 2017, confirming the Union’s non-compliance with Article 9(3) and (4) of the Convention.
The main aspects of the Union’s non-compliance were that only acts of individual scope, adopted under environmental law, and having legally binding and external effects could be challenged via the internal review mechanism (see the ACCC’s 2017 Decision, particularly paras 94-104) and that members of the public other than NGOs could not request such review (paras 92-93). This led to most internal review requests being declared inadmissible.
Following this established non-compliance, the Commission proposed amendments to the Regulation, which would now allow for the challenge, within the internal review mechanism, of acts and omissions regardless of their personal scope that more generally contravene environmental law, and that have legal and external effects (for more detailed considerations of these amendments, see for example Brown, Leonelli, or Pagano). In February and again in July 2021, the ACCC assessed these particular proposed changes positively. An agreement on the amendments was reached in the trilogue negotiations in July 2021, and in October 2021, the amendments were officially adopted in Regulation (EU) 2021/1767.
The Document Request and the Judgment
It is within this revision and negotiation process that the legal opinion at the core of the dispute in ClientEarth and Leino-Sandberg v Council comes into play. The currently only partially available version of the requested document contains a (legal) analysis of the findings of non-compliance of the ACCC, as well as a proposal for next steps to be taken, also in light of the (at the time) upcoming Meeting of the Parties to the Aarhus Convention (MoP). The crucial question then is why the Council, after providing only very restricted access to the requested legal opinion, still refuses to grant full access to this document. This question is all the more pertinent as the relevant negotiations have been closed and the changes to the Regulation have already long been adopted, leading the Court to quickly dismiss the argument that disclosure could undermine an ongoing decision-making process (Judgment, para 100).
The Council feared that full disclosure of the document would have two negative consequences for the Union. In its view, disclosure would threaten its ability to receive high-quality advice from its Legal Service because disclosing the full analysis invites external pressure and litigation due to its broad scope. Furthermore, disclosure would in the eyes of the Council hurt the Union’s ability to act effectively on the international stage. Both of these concerns relate to grounds protected by the Access to Documents Regulation, which contains exceptions to the general rule that Union institutions need to disclose documents.
The Legal Advice Exception
With regard to the Council’s first concern, the main dispute centred on the question of whether the document contained information sensitive enough to argue that disclosing it would endanger the Council’s ability to receive frank, objective, and comprehensive advice. Ever since the ECJ’s Turco ruling, institutions withholding access under this ground need to do more than describe an abstract worry. Instead, they need to “give a detailed statement of reasons” why they believe the legal advice in question is “of a particularly sensitive nature or [has] a particularly wide scope” (para 69).
To that effect, the Council in this case cited ‘external pressure’ and the large number of cases brought before the Union courts as evidence of the contentious nature of the subject matter (Judgment, paras 63 and 71). In such a controversial area, disclosing a broad legal discussion of the Union’s compliance with the Aarhus Convention in light of the proposed amendments could add fuel to the fire, and in turn, make members of the Council Legal Service hesitant to present their honest opinions in the future.
The Court deemed the argument based on the existence of ‘external pressure’ completely unsubstantiated (Judgment, para 65). This observation is to be applauded, given that the ‘external pressure’ in question amounted to nothing more than quite measured comments by NGOs and academics, including on this blog (Council Replypara 37). Especially in legislative procedures, it is striking that the Council views critical engagement with the Union’s policies as ‘external interference’ rather than healthy signs of public engagement in the democratic process.
The second concern, regarding the broad nature of the legal analysis, and the related risk of litigation, was taken more seriously by the Court, as it acknowledged the many legal challenges against the Union’s compliance with the Aarhus Convention. However, the Council did not explain specifically how disclosing the document at hand would negatively influence such procedures. Indeed, how could legal advice that was not negative about the Commission’s proposal make it more difficult to defend the eventually adopted Regulation in court (Judgment, para 75)? Finally, the Court stressed that the amendment of the Aarhus Regulation could not and did not entail consequences for the standing criteria laid down by Article 263 TFEU. Thus, disclosing legal advice on the relation between the internal review mechanism and the remedies provided by the Treaties was considered unproblematic (Judgment, paras 84-85).
The International Relations Exception
The second ground for refusal by the Council related to the Union’s international relations. In the case law on this exception, institutions have generally presented two main rationales for secrecy (see Peters and Ankersmit for an overview). The first concerns information that reveals strategic objectives and tactical considerations, because external actors could in turn use that information to the detriment of the Union. The second main reason stems from the fact that certain documents are shared with the Union on a confidential basis and disclosing them could hurt the climate of confidence.
The Council in this case employed the first rationale, stressing that revealing the legal analysis would ‘compromise the Union’s position vis-à-vis the other parties to the Aarhus Convention’ (Judgment, para 107). In line with previous case law such as In ‘t Veld v Council, the Court required more than a mere fear, but rather an argument showing ‘how disclosure could specifically and actually undermine’ the Union’s interest in international relations (Judgment,para 108). Given that the ACCC itself had in fact recommended the adoption of the amendment to the Aarhus Regulation, and the Council’s Legal Service opinion in question was not negative to or critical of the amendment (paras 115-116), the Court failed to see how disclosure could weaken the Union’s position in negotiations with the Convention parties.
Simply a Piece of Uncontroversial Legal Advice?
In general, the Court’s critical approach to the Council’s fears signifies a positive development in the case law concerning access to documents. As has been argued before by Leino-Sandberg, Union institutions generally showcase an attitude of ‘exasperation and foot-dragging’ when it comes to publishing legal advice. Moreover, in previous cases, the Court itself has been dangerously deferential to any justification presented under the ‘international relations’-exception. The fact that the Court carefully scrutinised the Council’s arguments and did not take the presented worries for granted is a laudable approach that brings the Union more in line with its own commitment to transparency (Article 1(2) TEU).
Still, the judgment relies on an assumption that can be viewed critically. The Court seems to infer that the concerned legal analysis cannot invite external pressure, litigation, or tough negotiations with Aarhus Convention parties, mainly because it does not take a negative stance towards the legislative proposal. However, based on the available information (and lacking knowledge of the full document), this assumption seems far from self-evident.
While the judgment only contains the positive comments of the ACCC on the 2021 amendments to the Aarhus Regulation (Judgment, paras 10, 18, and 92), the actual negotiations surrounding the Union’s compliance with the Convention are far from settled. Indeed, the ACCC in 2021 determined that while the amended Regulation constituted a ‘significant positive development’, certain remaining hurdles to the Union’s compliance with Articles 9(3) and (4) of the Convention would now depend predominantly on whether the relevant provisions are interpreted consistently with the objectives and obligations of the Convention (see the ACCC’s 2017 Report, paras 117-119).
Moreover, another concrete issue of the Aarhus Regulation’s review mechanism, concerning the impossibility of challenging state aid decisions, was raised in a different complaint and ACCC report, and has not been addressed by the 2021 amendment to the Regulation. In the last MoP in 2021, a new decision on the Union’s compliance on this matter was postponed, as the Union extraordinarily requested more time to “analyse the implications and assess the options available” (see paras 54-55, 57).
It thus appears that the dilemma at the core of the negotiations to which the legal advice of the Council related, seems anything but resolved. While we await the Council to provide the requested document in full in order to know for sure what the content of the advice really is, the various communications from the Council allow some theorising.
What we know for sure is what the secret document does not address, as the Council explained in the hearing in the case that the document (1) does not cover political or strategic aspects of the Commission’s proposal and the Union’s position in the Aarhus Compliance negotiations, (2) does not cover the aspect of the state aid exception, and (3) does not relate to any other future international agreement (Report for the Hearing in Case T-683/21).
Furthermore, reading between the lines of the Council’s rather vague statements in the written reply to the document request and the hearing, one can hypothesise what the document does address. It seems to concern the Union’s compliance with the Aarhus Convention’s access to justice obligations of Article 9(3) and (4) in a much more general way and in relation to the limitations posed not only by the then-to-be-amended Aarhus Regulation but also by the Union’s overarching system of legal remedies under primary law. Indeed, according to the Council, the document “contain[s] an elaborate analysis, including questions relating to primary law”, concerning “the system of internal review as established under this regulation in relation to the system of legal remedies as provided for under Article 263 [TFEU]”, and the “legal feasibility of solutions that the European Union could implement to address the alleged non-compliance with the Aarhus Convention” (Council Reply, paras 50, 52, 69 and 70). As such, even more sensitive, the Council in the hearing explained that the advice seems to cast doubt on the Union’s compliance with Article 9(3) and (4) of the Convention, potentially by interpreting the Aarhus Regulation and Union primary law in a way contrary to what the ACCC was expecting in their 2017 and 2021 reports (Report for the Hearing in Case T-683/21).
Thus, while the Court rejected the Council’s worries in relation to the sensitivity of the requested document, it does not seem unlikely that the Council within this document reflected on intricate matters of Union law and the relationship with international obligations.
A More Principled Way to Reach the Same Conclusion
Although it is thus not implausible that the document contains politically and legally charged information, this does not mean that the Council withheld access to it rightly. While the Court, in line with case law such as ClientEarth (ISDS), coupled its review of the refusal to disclose with the sensitivity or strategic nature of the legal opinions, we argue that a more principled line of argumentation would have been more desirable.
As argued previously by Peters and Ankersmit, the Court could have distinguished policy areas characterised by a zero-sum logic and areas characterised by a positive-sum logic. In the former realm, secrecy is classically viewed as a necessary evil to avoid adversaries from gaining too much insight into the Union’s internal deliberations. As alluded to by the Ombudsman, disclosure of information could indeed be dangerous if certain ‘key strategic interests’ are at play, such as military strategies or critical infrastructure. In contrast, the development of collaborative policies in fields like environmental law is typically spurred on, rather than hurt, by transparency and openness. The typical mutual benefits from cooperation in these areas even hinge on the trust parties obtain by being able to check on each other. Likewise, MoPs are generally open and transparent, whereas the Aarhus Convention also contains a pledge to uphold a high degree of transparency for environmental information (Article 4).
The Court could have interpreted the Access to Documents Regulation in light of these considerations by making this distinction between areas where the need for secrecy differs widely. As a result, the Council’s fears would not justify secrecy. It cannot be said to be in the Union’s interest to hide legal advice as a strategic move to escape critical debates on the Union’s compliance with a crucial pillar of the system of international environmental law, the success of which relies on genuine cooperation and mutual trust amongst the parties. In our view, such a principled approach is to be preferred over implicitly increasing the level of scrutiny in the review, as it makes the Union’s transparency framework more robust, in line with the objectives of the Aarhus Convention.
To conclude, we suggest that the Council’s legal advice at the core of this judgment clearly contains information that the public should be able to access, even if this information continues to have strategic significance. How controversial the content of the previously hidden legal advice actually is, should be clarified soon, when the Council follows up on the judgment and discloses the full document.
The authors would like to thank Professor Päivi Leino-Sandberg for providing us with additional context on the case, as well as the Report for the Hearing in Case T-683/21. This document is not (yet) published online.
