Pöördumise edastamine

Saatja: Kirke Härma-Tamme <[email protected]> Saadetud: 08.09.2021 09:49 Adressaat: SM Info <[email protected]>; <[email protected]> Teema: FW: LAUNCH OF THE WRITTEN CONSULTATION - Confirmatory application No 34/c/02/21 - DEADLINE TO REPLY: 13.09.2021 (NOON) Tere Edastan alleoleva kirja ka Sotsiaalministeeriumile ja Keskkonnaministeeriumile. Ootame tagasisidet hiljemalt 13. septembril kell 10.00. Tänades Kirke Härma-Tamme From: Kirke Härma-Tamme Sent: Wednesday, September 8, 2021 9:10 AMTo: '[email protected]' <[email protected]>Subject: FW: LAUNCH OF THE WRITTEN CONSULTATION - Confirmatory application No 34/c/02/21 - DEADLINE TO REPLY: 13.09.2021 (NOON) Tere Edastan pöördumise, mille osas küsitakse EE seisukohta. Palun seisukohta hiljemalt 13. septembri hommikul kell 10.00. Mittenõustumise korral palun edastada inglisekeelsed põhjendused. Vastuse mittelaekumise loeme vaikimisi ettevalmistatud seisukohaga nõustumiseks. Tagasisidet oodates Kirke Härma-Tamme Referent Õiguspoliitika osakond Justiitsministeerium From: TRANSPARENCY Council Secretariat (COMM) <> Sent: Monday, September 6, 2021 5:43 PMTo: '[email protected]' <>; 'theresa- [email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; Age Inkinen <>; ; Mariko Jõeorg-Jurtšenko <>; Kirke Härma-Tamme <>; Aaro Mõttus <>; ; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; 'hanna- [email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; 'pol-eu4-3- [email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; 'josse- [email protected]' <>; '[email protected]' <>; 'beata.wscisly- [email protected]' <>; '[email protected]' <>; 'prd@reper- portugal.be' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]'; '[email protected] ' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]'; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>; 'pol-s5- [email protected]' <>; '[email protected]' <>; '[email protected]' <>; '[email protected]' <>Cc: JANSSEN Micheline <>Subject: LAUNCH OF THE WRITTEN CONSULTATION - Confirmatory application No 34/c/02/21 - DEADLINE TO REPLY: 13.09.2021 (NOON) Tähelepanu! Tegemist on välisvõrgust saabunud kirjaga.Tundmatu saatja korral palume linke ja faile mitte avada. Dear Members of the Working Party on Information, A written consultation of the Working Party has to be launched for the approval of the draft reply to confirmatory application 34/c/02/21 at the Working Party level. You will find attached document 11273/21 containing the draft reply to this confirmatory application, and the voting table related to it. You are kindly requested to let us know by 13 September 2021 NOON if you agree with this draft reply. In the absence of a reply from your delegation by that date, the draft reply will be considered as approved by your delegation. Please "reply to all" only if you have comments or intend to make a statement in order to allow other delegations to react. Please note that this written consultation only replaces the examination of the draft reply at the Working Party level. Following this written consultation, the draft reply will be submitted to COREPER 2 (15 September 2021) and Council (GAC) (21 September 2021) for adoption. Kind regards, Transparency General Secretariat of the Council Directorate-General Communication and Information - COMM Directorate Information and Outreach Information Services Unit Rue de la Loi/Wetstraat, 175 - B-1048 Bruxelles/Brussel - Belgique/België | Disclaimer: The views expressed are solely those of the writer and may not be regarded as stating an official position of the Council of the EU Clause de non-responsabilité: Les avis exprimés n'engagent que leur auteur et ne peuvent être considérés comme une position officielle du Conseil de l'UE Council of the European Union Brussels, 6 September 2021 (OR. en) 11273/21 LIMITE INF 241 API 134 NOTE From: General Secretariat of the Council To: Delegations No. prev. doc.: 11272/21 Subject: Public access to documents - Confirmatory application No 34/c/02/21 Delegations will find attached a draft reply to confirmatory application No 34/c/02/21 (see 11272/21). 11273/21 MJ/ns 1 COMM 2C LIMITE EN  ANNEX DRAFT REPLY ADOPTED BY THE COUNCIL ON … TO CONFIRMATORY APPLICATION 34/c/02/21, made by email on 12 August 2021, and registered on 13 August 2021, pursuant to Article 7(2) of Regulation (EC) No 1049/2001, for public access to documents ST 9431/09 INIT, ST 9431/09 COR1, ST 10790/09, ST 11346/09 and ST 17553/09 The Council has considered the confirmatory application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43) (hereafter referred to as "Regulation (EC) No 1049/2001") and Annex II to the Council's Rules of Procedure (Council Decision 2009/937/EU, OJ L 325, 11.12.2009, p. 35) and has come to the following conclusion: 1. On 7 May 2020, the applicant requested access to certain documents containing the Council Legal Service (“CLS”) opinions from 1999 until 2019. Due to the broad scope of this request, it was agreed that the General Secretariat of the Council (“GSC”) would respond to the applicant in several batches. 2. On 12 August 2021, the GSC replied to this application by granting access to documents 6083/09, 6096/09, 7538/09, 10557/09, 16323/09 and 17039/09. Partial access was granted to the greatest part of document 11346/09 with the exception of the second and third sentence of its paragraph 10, paragraphs 22 to 24 and paragraphs 28 and 29 pursuant to Article 4(1)(a), third indent of Regulation (EC) No 1049/2001, the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 and Article 4(2), second indent, of Regulation (EC) No 1049/2001. Partial access was also granted to documents 9431/09 INT, 10790/09 and 17553/09 (paragraphs 1 to 10 of document 9431/09; paragraphs 1 to 4 of document 10790/09; paragraphs 1 to 6, 8 to 9, 14, 16, 18 to 20, 24 to 25, 29, 31 to 33 and 36 to 37 of document 17553/09). Access to the remaining parts of the documents was refused pursuant to Article 4(2), second indent, of Regulation (EC) No 1049/2001. Access to document 9431/09 COR 1 was however refused. 11273/21 MJ/ns 2 COMM 2C LIMITE EN 3. On 12 August 2021, the applicant made a confirmatory application. He argued that “these documents [whose access was partially refused, i.e. documents 11345/09, 9431/09 INIT and COR1, 10790/09 and 17553/09] may be sensitive due to their potential applicability in other areas, but their arguments involved are not as contentious as to have brought litigation or drawn out battles between the member states and the institutions”. 4. The Council has carefully considered the confirmatory application. It has re-assessed, in full consideration of the principle of transparency underlying Regulation (EC) No 1049/2001 and in light of the applicant's arguments, whether public access can be provided to the requested documents. I. Context of the requested documents 5. Document 11346/09 contains a legal opinion of the CLS on the Proposal for a Council Decision authorising Member States to ratify, in the interests of the European Community, the Work in Fishing Convention, 2007, of the International Labour Organisation (“ILO”). The opinion assessed whether, pursuant to Articles 1 and 2 of the draft decision, the ratification of the Work in Fishing Convention, 2007, of the ILO (Convention 188) constituted an obligation or simply an option for Member States. This decision was adopted on 7 June 2010.1 6. Document 9431/09 INIT contains a legal opinion of the CLS examining the question of the appropriate legal basis for the Directive on the application of patient's rights in cross-border healthcare. The legal opinion assessed whether the legal basis proposed by the Commission (Article 95 TEC, which is current Article 114 TFEU) was appropriate, or whether it ought to be supplemented or replaced by Article 152(4)(c) TEC, which is now Article 168(4)(c) TFEU. Following the adoption of the proposal, Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of the patients’ rights in cross-border healthcare entered into force on 24 April 2011.2 Document 9431/09 COR 1 contains a corrigendum of the document 9431/09 INIT. 1 OJ L 145, 11.6.2010, p. 12. 2 OJ L 88, 4.4.2011, p. 45–65. 11273/21 MJ/ns 3 COMM 2C LIMITE EN  7. Document 10790/09 contains a legal opinion of the CLS which examines the compatibility with WTO law of the Proposal for a Council Regulation on the protection of animals at the time of killing. Following the adoption of this proposal, Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing applies from 1 January 2013.3 8. Document 17553/09 contains a legal opinion of the CLS the compatibility with WTO law of the Proposal for a Regulation of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. Following the adoption of the proposal, Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market entered into force.4 II. The exception related to international relations under Article 4(1)(a) third indent of Regulation (EC) No 1049/2001 9. Based on their content, the Council considers that documents 10790/09, 11346/09 and 17553/09 would come within the remit of the exception of protection of the public interest as regards international relations (Article 4(1)(a), third indent of Regulation (EC) No 1049/2001). 10. At the outset, in accordance to the established case-law of the Court of Justice, the public interest exceptions laid down in Article 4(1)(a) of Regulation (EC) No 1049/2001 are subject to a particular regime as compared to the other exceptions included in Article 4. 11. On the one hand, "the Council must be recognised as enjoying a wide discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by those exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation (EC) No 1049/2001 could undermine the public interest".5 3 OJ L 303, 18.11.2009, p. 1–30. 4 OJ L 295, 12.11.2010, p. 23–34. 5 Judgments of 1 February 2007, Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 34; judgment of 12 September 2013, Besselink v Council, T-331/11, EU:T:2013:419, paragraph 32; and judgment of 3 October 2012, Jurašinović v Council, T-63/10, EU:T:2012:516, paragraph 32. 11273/21 MJ/ns 4 COMM 2C LIMITE EN 12. On the other hand, once the Council has come to the conclusion that the release would indeed undermine the public interest in this area, it has no choice but to refuse access, because "it is clear from the wording of Article 4(1)(a) of Regulation (EC) No 1049/2001 that, as regards the exceptions to the right of access provided for by that provision, refusal of access by the institution is mandatory where disclosure of a document to the public would undermine the interests which that provision protects, without the need, in such a case and in contrast to the provisions, in particular, of Article 4(2), to balance the requirements connected to the protection of those interests against those which stem from other interests".6 13. Therefore, while the Council enjoys a wide discretion in assessing the impact of the release of documents on international relations, it is barred from taking into account other legitimate interests that might override the conclusion that giving access to a document would harm the protected interest and granting access nonetheless.7 14. In practice, in its answer to a confirmative application, the institution must provide the applicant with plausible explanations as to how access to the documents at issue could specifically and actually undermine the protection of the EU’s international relations and whether, in the institution’s broad discretion in applying the exceptions in Article 4(1) of Regulation (EC) No 1049/2001, the risk of that undermining might be considered reasonably foreseeable and not purely hypothetical. However, in the description of the document for the purpose of its answer, the institution cannot reveal its content in further detail as doing so may disregard the scope of the interest protected by that provision.8 15. Having thoroughly examined the content of documents 10790/09, 11346/09 and 17553/09 and taking into account the state of play on the matter, the Council considers that further access to documents beyond the already disclosed sections would undermine the protection of international relations pursuant to Article 4(1) of Regulation (EC) No 1049/2001. 6 Ibid and judgments of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraph 40, and judgment of 7 February 2018, Access Info Europe v Commission, T-852/16, EU:T:2018:71, paragraph 40 and the case-law cited. 7 Order of 20 May 2020, Nord Stream 2 v Parliament and Council, T-526/19, EU:T:2020:210, paragraph 61 and the case-law cited. 8 See, to that effect, judgment of 12 September 2013, Besselink v Council, T-331/11, EU:T:2013:419, paragraph 106; of 7 February 2018, Access Info Europe v Commission, T-851/16, T:2018:69, paragraphs 54 and 122, and judgment of 7 February 2018, Access Info Europe v Commission, T-852/16, EU:T:2018:71, paragraphs 51 and 113-114. 11273/21 MJ/ns 5 COMM 2C LIMITE EN 16. First, document 10790/09, a legal opinion of the CLS, examines the compatibility with WTO law of the Proposal for a Council Regulation on the protection of animals at the time of killing. In particular, whether making imports of animal products from third countries contingent on their compliance with (or equivalent to) the Community animal welfare provisions at the time of killing is compatible with the rules of the WTO. To that purpose, the opinion examined the Agreement on Technical Barriers to Trade (TBT Agreement) and the General Agreement on Tariffs and Trade (GATT 1994). 17. Second, document 17553/09, a legal opinion of the CLS, examines the compatibility with the WTO rules of the proposal for a Regulation of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. In concreto, whether the potential less favourable treatment of timber harvested in a third country which applies more stringent forestry legislation than the applicable to like timber harvested in an EU Member State, or the advantage given to timber originating from third countries having concluded Voluntary Partnership Agreements ("VPA") compared to like timber originating from non-VPA countries, or the potential quantitative restriction on the importation into the EU of timber originating from third countries, is compatible with the rules of WTO. 18. As stated above, in this response, the Council cannot reveal the direction recommended by documents 10790/09 and 17553/09, as doing so it disregards the exception covered by the third indent of Article 4(1) (a) of Regulation (EC) No 1049/2001. However, it is clear that, if the assessment contained in those documents points out to any aspect regarding the incompatibility of Council Regulation (EC) No 1099/2009, and Regulation (EU) No 995/2010, respectively, with the WTO rules, further/full disclosure of the requested documents would risk undermining the position of the EU in the context of the WTO. The same can be said about other WTO related (ongoing) discussions due to the horizontal character of the legal advice contained in documents 10790/09 and 17553/09. This would therefore affect the ability of the EU to defend its position within the international framework set up by the WTO. In that regard, the EU Court9 has recognized that the release of documents may be refused when their disclosure might weaken the position of the EU within a dispute settlement mechanism like an arbitration but, also, more generally speaking, a review of compliance that may end up in a dispute settlement mechanism. 9 See, by analogy, order of 20 May 2020, Nord Stream 2 v Parliament and Council, T-526/19, EU:T:2020:210, paragraph 135. 11273/21 MJ/ns 6 COMM 2C LIMITE EN 19. Therefore, contrary to the applicant’s claim in his confirmative application, the content of documents 10790/09 and 17553/09 is sensitive and their disclosure would affect the ability of the EU to defend its position within the WTO framework. 20. Third, document 11346/09 contains an assessment of ratification of an international agreement in the context of the ILO (i.e. the ratification of the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention 188)). Pursuant to the internal rules of the ILO, only States can be parties to this organisation, not international organisations. Therefore, the European Union cannot ratify a convention in the framework of the ILO. The legal opinion contained in document 11346/09 analyses certain legal issues stemming from this configuration and their impact on the negotiation of an international agreement. The disclosure of this document, containing the legal advice would reveal the issues that the Council and its members are currently discussing in the negotiation of similar instruments (such as the legal basis). 21. The Council therefore concludes that full disclosure of documents 10790/09, 17553/09 and 11346/09 would undermine the protection of international relations pursuant to the third indent of Article 4 (1) (a) of Regulation (EC) No 1049/2001. III. The exception related to the institution’s decision-making process under Article 4(3) first subparagraph of Regulation (EC) No 1049/2001 22. At the outset, it is recalled that Article 4(3) first subparagraph of Regulation (EC) No 1049/2001 provides that: "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". 11273/21 MJ/ns 7 COMM 2C LIMITE EN 23. It has been established by the case-law that a higher standard of transparency applies when the institutions act in their legislative capacity. This cannot, however, result in denying the institutions the possibility of justifying a refusal to grant access to documents related to a legislative file on the basis of the exception set out in Article 4(3) of Regulation (EC) No 1049/2001, given, in particular, that this exception does not exclude the legislative process from its scope. Thus, it remains open to the institutions to refuse, on the basis of that provision, access to a specific document related to a legislative process or parts thereof in duly justified cases. 24. The Council considers that this standard of protection applies to the present case. Although the decision-making processes in the context of which documents 9431/09 INIT and 11346/09 were issued have finalised, the legal issues analysed in these documents are of a particularly sensitive nature and have a particularly wide scope. 25. The assessment contained in document 9431/09 INIT regarding the choice of legal basis is at the core of two ongoing legislative discussions on two health-related proposals.10 26. First, the legal assessment in this document is relevant in the context of the proposal for a Regulation of the European Parliament and of the Council on health technology assessment and amending Directive 2011/24/EU (COM(2018) 051 final - 2018/0018 (COD)). Although a provisional agreement has recently been reached following trilogues discussions, the act has not yet been formally adopted. This proposal, which was presented by the Commission in January 2018, is based on Article 114 TFEU. Therefore, the requested opinion contained in document 9431/09 INIT is directly relevant to assess the appropriate legal basis of this act. 27. Second, the legal analysis contained in document 9431/09 INIT is also relevant in the framework of the ongoing legislative discussions on the proposal for a Regulation of the European Parliament and of the Council on serious cross-border threats to health and repealing Decision No 1082/2013/EU (COM(2020) 727 final – 2020/0322(COD)). The Commission, in its proposal, proposed as legal basis of this regulation Article 168(5) TFEU (which is the former Article 152(4)(c) TEC). The European Parliament has not yet adopted its position in first reading. 10 As mentioned above, this legal opinion assessed whether the legal basis proposed by the Commission (Article 95 TEC, which is current Article 114 TFEU) was appropriate, or whether it ought to be supplemented or replaced by Article 152(4)(c) TEC, which is current Article 168(4)(c) TFEU. 11273/21 MJ/ns 8 COMM 2C LIMITE EN 28. The assessment contained in document 11346/09 regarding international agreements in the context of the ILO is at the core of ongoing legislative discussions on similar instruments. Therefore, the disclosure of the requested document would reveal the issues with which the Council and its members are currently concerned and the considerations underpinning the institution’s discussions (for instance, the choice of legal basis). 29. The Council therefore concludes that full disclosure of documents 9431/09 and 11346/09 would undermine the protection of the institution’s decision-making process under Article 4(3) first subparagraph of Regulation (EC) No 1049/2001. IV. The exception related to the protection of legal advice under Article 4(2) second indent of Regulation (EC) No 1049/2001 30. The Council has assessed the request for access in full compliance with the primary EU law, the provisions of Regulation (EC) No 1049/2001 and the relevant caselaw on access to documents, including the principle of the wider access afforded to documents drawn up in the context of legislative activities. 31. Whereas a higher standard of transparency applies when the institutions act in the context of their legislative capacity, this cannot, however, result in denying the institutions the possibility of justifying a refusal to grant access to documents related to a legislative file on the basis of the exceptions set out in Article 4 of Regulation No 1049/2001, given, in particular, that those exceptions do not exclude the legislative process from their scope.11 32. Under Article 4(2) second indent of Regulation (EC) No 1049/2001: "The institutions shall refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice". In its leading judgment in the Turco case, the Court of Justice confirmed the possibility for an institution to refuse, on that ground, public access to a specific legal opinion given in the context of a legislative process, being of a particularly sensitive nature or having a particularly wide scope.12 11 See Case C-266/05, Sison v Council, EU:C:2007:75, paragraph 41 and Case T-540/15, De Capitani v Parliament, EU:T:2018:167, paragraph 112. 12 See Case C-39/05 P and C-52/05 P, Sweden and Turco v Council, ECLI:EU:C:2008:374, paragraph 69. 11273/21 MJ/ns 9 COMM 2C LIMITE EN 33. The opinion of the CLS contained in document 9431/09 INIT is frank and comprehensive and the arguments and conclusions developed therein reveal an in-depth assessment on the choice of legal basis in the field of health. 34. The possibility that the legal advice in question be disclosed to the public during the negotiations on the Commission's proposal for a Regulation of the European Parliament and of the Council on health technology assessment and amending Directive 2011/24/EU and the proposal for a Regulation of the European Parliament and of the Council on serious cross- border threats to health and repealing Decision No 1082/2013/EU may weaken the Council’s position in those negotiations. Moreover, it could expose the CLS to external pressure, which in turn, could affect the way in which legal advice is drafted and hence prejudice the possibility to express views free from external influences. Indeed, disclosure in such context would run counter the ability of the CLS to continue offering an honest and frank opinion, ultimately undermining the decision-making autonomy of the Council. 35. Additionally, disclosure of legal advice concerning this aspect would negatively affect the ability of the CLS to effectively defend decisions taken by the Council before the Union courts on an equal footing with the legal representatives of the other parties to legal proceedings in the abovementioned ongoing legislative procedures. In that regard, the Council also notes that the case-law has recognised the particularly sensitive nature of legal advice provided by the Legal Service of an institution and concerning issues that could be the subject of litigation.13 13 See judgment of 15 September 2016, Herbert Smith Freehills LLP v Council, T-710/14, EU:T:2016:494, paragraphs 70 and 71. See judgment of 15 September 2016, Philip Morris Ltd v Commission, T-796/14, EU:T:2016:483, paragraphs 67-70. See also judgment of 9 June 2010, Éditions Odile Jacob SAS v. Commission, T-237/05, EU:T:2010:224, paragraph 160. In its judgment, the General Court found that the risk of undermining the protection of legal advice laid down in the second indent of Article 4(2) is reasonably foreseeable and not purely hypothetical when disclosure of the advice would put an institution (in that case, the Commission) in the difficult position where its Legal Service might find itself having to defend a position before the Court which was not as the position it argued for internally in its role as adviser. According to the General Court, "the risk of such a conflict arising would be liable to have a considerable effect on both the freedom of the Legal Service to express its view and its ability effectively to defend before the judicature of the European Union, on an equal footing with the other legal representatives of the various parties to legal proceedings, the Commission´s definitive position and the internal decision-making process of that institution. The Commission (…) must have the freedom to defend a legal position which differs from that initially adopted by its Legal Service". The ruling of the General Court was subsequently upheld by the Court of Justice. 11273/21 MJ/ns 10 COMM 2C LIMITE EN 36. In light of the above, in that particular case, full disclosure of document 9431/09 INIT would compromise the interest of the institution in seeking legal advice and receiving frank, objective and comprehensive advice, and may lead the Council to display caution when requesting similar written opinions from its Legal Service. 37. Under the circumstances, the Council concludes that full disclosure of document 9431/09 INIT would undermine the protection of legal advice pursuant to Article 4(2), second indent, of Regulation (EC) No 1049/2001. V. Partial access pursuant to Article 4(6) of Regulation (EC) No 1049/2001 38. In accordance with Article 4(6) of Regulation (EC) No 1049/2001: "If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released". 39. In its initial decision, the GSC considered that disclosure of certain parts of documents 11346/09, 9431/09 INIT, 10790/09 and 17553/09 did not represent a risk for the interests protected by the invoked exceptions. 40. The Council has now examined whether extended partial access could be granted to the documents in question. 41. In light of its examination, the Council concludes that all the parts of documents 11346/09, 9431/09 INIT, 10790/09 and 17553/09 which have not been disclosed in its first reply are covered by the invoked exceptions in their entirety and that no additional partial access can be granted. However, the Council considers that document 9431/01 COR1 could be disclosed. VI. Assessment of the public interest in disclosure 42. As abovementioned, Article 4(1) of Regulation (EC) No 1049/2001 does not provide for a test of balancing the harm to the protected interest against the public's interest in disclosure. On the contrary, once the Council has come to the conclusion that release would indeed undermine the public interests protected pursuant to the third indent of Article 4(1)(a) of Regulation (EC) No 1049/2001, this conclusion is not conditioned by any obligation – or even possibility – to take into account "an overriding public interest in disclosure" as it is the case for Article 4(2) and (3) of the Regulation. 11273/21 MJ/ns 11 COMM 2C LIMITE EN 43. In that regard, as far as the refusal is also based on the exceptions laid down in Article 4(2), second indent (protection of legal advice), and Article 4(3), first subparagraphs (protection of decision-making process) of the Regulation (EC) No 1049/2001 and for the sake of completeness, the Council would assess the public interest in the disclosure of the documents. 44. In that regard, the Council is called upon to carefully balance the public interest in having access to the requested documents against the need to protect the interests under the exceptions of Regulation (EC) No 1049/2001, including the interest of an institution to protect the autonomy of its decision-making, to seek advice from its legal counsellors and to preserve the equality of arms in view of a reasonably foreseeable litigation risk. In that regard, the Council also recalls the nature and purpose of the requested documents, which is a technical legal assessment and does not contain positions of political decision-makers. 45. The Council also notes that the arguments put forward by the applicant in the confirmatory application are based on general considerations that do not provide an appropriate basis for establishing that, in the present case, the principle of transparency should prevail over the reasons justifying the refusal to grant full access, as developed above. 46. In light of the above, the Council concludes, on account of the particularly sensitive nature of the legal advice as well as the need of preserving the effectiveness of the decision-making process, the public interest invoked by the applicant does not outweigh the need to preserve the interests protected under Article 4(2) second indent and Article 4(3) first subparagraph of Regulation (EC) 1049/2001. CONCLUSION 47. For the abovementioned reasons, the Council concludes that: • Refusal to give public access to the remaining parts of document 11346/09 is confirmed pursuant to Article 4(1) (a) third indent (protection of international relations) and Article 4(3) first subparagraph (protection of the decision-making process) of Regulation (EC) No 1049/2001. • Refusal to give public access to the remaining parts of document 9431/09 INIT is confirmed pursuant to Article 4(3) first subparagraph (protection of the decision-making process) and to the second indent of Article 4(2) (protection of the legal advice) of Regulation (EC) No 1049/2001. 11273/21 MJ/ns 12 COMM 2C LIMITE EN  • Refusal to give public access to the remaining parts of document 10790/09 is confirmed pursuant to Article 4(1) (a) third indent (protection of international relations) of Regulation (EC) 1049/2001. • Refusal to give public access to the remaining parts of document 17553/09 is confirmed pursuant to Article 4(1) (a) third indent (protection of international relations) of Regulation (EC) 1049/2001. • Access is given to document 9431/09 COR 1. ____________________ 11273/21 MJ/ns 13 COMM 2C LIMITE EN LAUNCH OF WRITTEN CONSULTATION (deadline to reply: 13 September 202 1 - NOON ) Confirmatory application No 3 4 /c/0 2 /2 1 (draft reply: see doc. 1 1273 / 2 1 ) DELEGATIONS ARE REQUESTED TO REPLY : - YES, IF THEY AGREE WITH THE PROPOSAL OF THE GENERAL SECRETARIAT - NO, IF THEY DISAGREE WITH THE PROPOSAL OF THE GENERAL SECRETARIAT, IN THIS CASE SPECIFYING THE REASON(S) UNDER "REMARKS" Document / Subject Proposal of the General Secretariat Document 9431/09 : Document 9431/09 COR 1 : Document 10790/09 : Document 11346/09 : Document 17553/09: C onfirmation of partial access pursuant to Art. 4(3) 1 and Art. 4(2) 2 R elease C onfirmation of partial access pursuant to Art. 4(1) a, third indent C onfirmation of partial access pursuant to Art. 4(1) a, third indent and Art. 4(3)1 C onfirmation of partial access pursuant to Art. 4(1) a, third indent Document / Subject Proposal of the General Secretariat BE BG CZ DK DE EE IE EL ES FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE Statements :