European briefing

In Joined Cases C-39/05 P and C-52/05 P, Turco (Grand Chamber, 1 July 2008), the ECJ has allowed an appeal from a judgment of the CFI in relation to freedom of information. In doing so, it has very significantly reduced the protection available for legal advice given to Community institutions.

Article 255 EC provides a treaty-based right to freedom of information, subject to conditions established by legislation. The relevant legislation, Regulation 1049/2001, defines various exceptions. It includes a rule that access is to be refused 'where disclosure would undermine the protection of. . . legal advice . . . unless there is an overriding public interest in disclosure' (Art.4(2)). The question in Turco was how that exception should be applied.

Mr Turco sought disclosure of, among other documents, an opinion prepared by the Council's legal service on a legislative proposal. That request was refused; the Council was only prepared to disclose an introductory part of the document (which showed that it contained legal advice on the Council's powers), but would go no further.

In very general terms, the decision explained that it was considered that the disclosure of the document would undermine the protection of legal advice. Mr Turco argued in the CFI that this was much too general an approach, and that the Council should have engaged in a far more detailed analysis.

The CFI disagreed (Case T-84/03 Turco v Council [2004] ECR II-4061). It effectively accepted that once it had been shown that a document contained legal advice it was legitimate to accept as a matter of general principle that disclosure was likely to be injurious to the public interest. In the first place, it accepted that disclosure of legal advice relating to legislation might undermine public confidence in legislation. Secondly, it accepted that the disclosure of legal advice would tend to undermine the frankness and objectivity of the legal advice given to the council.

This line of reasoning will be familiar to English lawyers. It is essentially the same as the thought which leads, in English law, to the very strong protection afforded by the rules of legal professional privilege. The ECJ, however, was not prepared to accept it. It considered that there three questions must be kept distinct. First, did the document relate to legal advice. Second, if it did, would its disclosure undermine the purposes for which such advice is protected. Third, even if it might do so, is there an overriding public interest in disclosure. This could include the public interest in openness itself.

Each of those questions was to be answered not just of the document as a whole, but in relation to each part of the document.

Moreover, each of the questions had to be approached against a background of strict construction of the regulation, and with the importance of the principle of transparency kept firmly in mind.

It can be seen that this approach is substantially different from that adopted by the CFI. In the CFI's view, once the first question has been answered, the other questions in effect answered themselves. Not so for the ECJ.

More significantly still, the ECJ did not accept, as a matter of general principle, either of the arguments adopted by the CFI. It considered that, far from undermining confidence in the legislative process, openness (even about legal doubts) could reinforce it. It also considered that there were other, better ways than secrecy to ensure frank and objective legal advice. What threatens frank advice, in the ECJ's view, is pressure, not openness.

The judgment, then, is a strong endorsement of the values of transparency. But is it realistic? There seems something other-worldly about the idea that frankness and objectivity can be guaranteed where lawyers know that any doubts may be scrutinised in public and have to be subsequently explained away.

Would the ECJ be so confident that revelation of its own decision-making process would not place it under any pressure or in any way undermine public confidence? It seems doubtful.

In practical terms, there seems to be much to be said for the CFI's more generalised approach. Granted, it would in effect have given an almost blanket protection to the internal legal advice given in the course of making legislation. But although the ECJ's judgment gives greater public access, the question has to be asked: public access to what? The worldly might think that lawyers and their institutional clients, if they expect or fear public access, may well be likely to produce rather anodyne advice and doubts will not be expressed (or at least not recorded) and that the overall position will simply be that the institutions will not get the sort of frank and forthright advice they may require.

It is all very well to say that, if this happens, it will be the result of 'pressure'. But the pressure to serve the client's best interests is one that all lawyers are (quite properly) under. And if the client takes the view that it would be better that some things do not become public knowledge, the lawyer will be under pressure to advance that interest, too. It is open to argument, therefore, that the ECJ's approach is simply unrealistic, and that in the long run it may not actually serve the interests it wishes to promote.