A Danish bid to force the EU's Council of Ministers to disclose internal legal opinions has been rejected by the Luxembourg-based Court of First Instance.
The court which was asked whether documents relating to the Maastricht Treaty could be handed over to litigants in Denmark said it was in the public interest for the council to have access to internal independent legal advice.
The judges added that releasing the documents could also undermine the “stability of the Community legal order” and jeopardise the “proper functioning of the institutions” as the council might stop seeking legal advice internally if it knew written opinions would be made public.
The case arose from an action before the Danish courts in which a group of Danish citizens were seeking to overturn Danish ratification of the Maastricht Treaty.
In the course of those proceedings, a number of documents were requested by the litigants, including opinions from legal services. The council refused to hand over the opinions.
Alec Burnside, managing partner of Linklaters' Brussels office, said that the decision came as no surprise: “The court is, in effect, saying that advice given by the legal services of the commission and the council should enjoy legal privilege, which must be right.”
However, he noted that the other reason given by the court that disclosure would give rise to uncertainty over Community measures and have a negative impact on the functioning of the Community was more debatable: “If the measures were illegal then the public interest must lie in that being brought to light.”