File Inspection: EU Council Still Not Disclosing ECJ Refe...

'You may have access to documents 9669/09 and 9550/09.'

Ok, so far my request has been successful. As usual, I assume the Documents will soon be available on the website of the EU Council; hence, I'll not bother with uploading them here.

• 9669/09 [full; un-redacted]
• 9550/09 [full; un-redacted] /** still to be published **/

Document 9550/09, very much like its successor Document 9669/09, gives a brief annotated timeline of events leading to the decision to make a referral to the ECJ. The now released Document 9550/09 is a bit more verbatim concerning the political issues in question [emphasis added]:

'6. The Presidency intends to adopt a two-step approach in the consultation of the ECJ. First of all, agreement should be reached in the Council on the principle of consulting the ECJ under Article 300(6). Secondly, the Council Legal Service would draw up the memorandum to be submitted for the consultation of the ECJ, which would be expected to be discussed in the Working Party in June. After detailed examination in the Working Party, the full memorandum will then be presented to the Permanent Representatives Committee for adoption by the Council as soon as possible before submission to the ECJ.

7. The request should ask the ECJ to provide an opinion on whether the envisaged Agreement is compatible with the EC Treaty. In order to address this issue adequately, the request should be framed broadly to encompass all relevant issues of compatibility with Community law.

8. Where the memorandum describes the envisaged Agreement, it should, first of all, underline that consensus is still to be achieved on the legal basis, the choice of legal instrument and on some substantive issues. The memorandum will also need to reflect the legal doubts that some Member States have expressed on the envisaged Agreement. In particular, certain delegations would prefer to use a Community instrument which would confer jurisdiction for patent litigation cases on the ECJ. On the other hand, some of these delegations would also like to see the ECJ act as a final instance of appeal on all points of law ("cassation") contrary to the role in giving preliminary rulings on questions conferred to it as envisaged by the draft Agreement.'

With other words, the role of the ECJ in a possible future Unified Patent Litigation System is still heavily disputed. No substantial insight can be gained from both released Documents as to the nature of the legal issues at stake. Maybe that a full and un-redacted copy of Document 9076/09 might shed some further light on this matter - howewer:

'Document 9076/09 is a Note from the Presidency to the Working Party on Intellectual Property (Patents). It concerns a request for an opinion by the European Court of Justice on the compatibility with the EC Treaty of the envisaged Agreement creating a unified patent litigation system. It reflects the discussions within the Council's preparatory bodies on the text of the draft Agreement and the competence of the Community to conclude such an agreement and its compatibility with the EC Treaty as regards inter alia the tasks which would be assigned by this Agreement to the Court of Justice.

This document contains information on negotiations which have not yet been completed. Disclosure of this information could impede the proper conduct of the negotiations and weaken the future position of the EU in the framework of such multilateral negotiations.

Furthermore, the requested document concerns legal questions on the internal level of the EU, which may surface again in the future. It also contains legal advice from the Council Legal Service, which has not been given in a legislative procedure. The General Secretariat considers that the divulgation of 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. Disclosure of the legal advice in question might lead the Council to display caution when requesting opinions from its Legal Service, since the Council could find itself weakened by a published opinion of the Legal Service after having adopted a different interpretation of the legal issue at stake.

The General Secretariat also had to take into account the risk of the Legal Service coming 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.

Accordingly, pursuant to Article 4(1)(a) of the Regulation (protection of the public interest with regards to international relations), and in the absence of any evidence of an overriding public interest in disclosure also pursuant to Article 4(3) of the Regulation (protection of the decision-making process of the Council) and Article 4(2) of the Regulation (protection of court proceedings and legal advice), the General Secretariat is unable to grant you full access to the document requested.'

According to the General Secretariat of the Council, my request has been examined 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 2006/683/EC, Euratom, Official Journal L 285, 16.10.2006, p. 47)

Article 4(1)(a) of the Regulation No 1049/2001 reads:

1. The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a) the public interest as regards:

• public security,
• defence and military matters,
• international relations,
• the financial, monetary or economic policy of the Community or a Member State;

Obviously there appears no limitation to this clause; hence it could be overcome probably only by dropping any claims to know which of the delegations in the EU Council took a certain view on the matter at issue.

Article 4(3) of the Regulation No 1049/2001 reads

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

and the wording of Article 4(2) of the Regulation goes as follows:

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

• commercial interests of a natural or legal person, including intellectual property,
• court proceedings and legal advice,
• the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

So, both of these clauses can be overridden by public interest. However, how does that work in practice? I would like to read any comment of the readers of this Blog if there are any cases known where the concept of an overriding public interest has materialised somehow.