The European Council has some difficulties to apply the TURCO judgement of the ECJ which clearly mandates a disclosure of legal advice unrelated to court proceedings. Legal advice concerning the enhanced cooperation on an unitary patent, they think they are permitted to keep it confidential. I strongly doubt so. Just have a look at the arguments:
Dear Mr Rebentisch,
Your request of 26 December 2010 for access to document 17220/10 was registered on 3 January 2011 by the “Access to Documents” unit. Thank you for your interest.
The General Secretariat of the Council has examined your request on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, 31.5.2001, p. 43) and the specific provisions concerning public access to Council documents set out in Annex II to the Council’s Rules of Procedure (Council Decision No 2009/937/EU, Official Journal L 325, 11.12.2009, p. 35) and has come to the following conclusion:
Document 17220/10 contains a contribution of the Legal Service regarding the compatibility of possible enhanced cooperation in the field of patents with the internal market and the other provisions of the Treaties.
The legal advice contained in this document is particularly wide in scope, since it examines the question of whether implementing enhanced cooperation as regards the European Union patent is compatible de jure with the provisions of the Treaties, and in particular those that govern the internal market. Were the document released to the public, there is a risk that the legal advice would be taken out of its specific context and be applied in other areas where the question is raised. This would be detrimental to the protection of legal advice.
In addition, divulgation of the legal advice contained in the document would undermine the protection of legal advice, since it would make known to the public an internal opinion of the Legal Service, intended for the members of the Council. The possibility that the legal advice in question be disclosed to the public, may lead the Council to display caution when requesting written opinions from its Legal Service, since it could find itself in a situation where it would need to defend the decision it has taken against a – potentially critical – advice given by its Legal Service.
Moreover, the Legal Service could come under external pressure which could affect the way in which legal opinions are drafted and hence prejudice the possibility of the Legal Service to express its views free from external influences. Disclosure of the legal advice would also affect the ability of the Legal Service to effectively defend the decision taken by the Council before the Community courts.
In view of the foregoing, the General Secretariat is unable to grant you full access to this document, since the disclosure of the document would prejudice the protection of legal advice under Article 4(2) second indent of Regulation 1049/2001. As regards the existence of an overriding public interest in disclosure, the General Secretariat considers that, on balance, the principle of transparency which underlies the Regulation would not, in the present case, prevail over the above public interest so as to justify disclosure of the document.
However, pursuant to Article 4(6) of the Regulation, you may have access to the first three paragraphs of the requested document, which are not covered by any of the exceptions under the Regulation.
According to Article 7(2) of the Regulation, you may submit a confirmatory application requesting the Council to reconsider this position, within 15 working days of receiving this reply 1.
For the General Secretariat