Western Sahara Resource Watch (WSRW) has been denied access to the legal opinion of Council on the proposed extension of the EU-Morocco Trade Agreement into occupied Western Sahara. This was communicated by the General Secretariat of the Council of the European Union on 7 December 2018. 

Find our request for access here, and find Council's response below.

In its letter, the EU Council's Secretariat argues that it cannot make public its legal opinion for a handful of reasons. Here is how the Commission argues - and WSRW's comment to those arguments: 

• "the decision-making process to which the requested contribution refers to is currently ongoing. At the current stage, the consent of the European Parliament is required. Disclosure of the legal advice would hence carry the risk compromising the capacity of reaching an agreement on the dossier". 
  This seemingly suggests that divulging the opinion would undermine Council's preferred outcome: that Parliament supports the proposal. In one month from now, all Members of Parliament will cast their vote in plenary on the proposed agreement. While questions on the legality of the proposal remain, Council opts to not be transparent with regard to its legal opinion, as that could weaken the chances of seeing the deal through - raising serious questions about the content of the opinion. It is WSRW's opinion that if the legal arguments are so weak that the Council thinks the Parliament will not support it, the agreement should not be approved. 
   
• because the document "contains legal advice touching upon issues which relate to the conduct of the international relations of the Union". 
  For months on end, representatives of the EU Commission and Members of the European Parliament who favour the deal, have been stating the case that this is a technical trade agreement, and that as such the wider political implications should not be considered. Member States have expressed their confidence that the proposed agreement will in no way jeopardize the status of Western Sahara. 
  The EU Commission even casts aside the vehement opposition of the Polisario Front - the UN-recognised representation of the people of Western Sahara - to the deal, saying their denunciation is not for economic reasons, but rather over political motivations.
  Now Council claims that "disclosure of the advice and the issues with which it deals would undermine the protection of international relations".
  Wasn't this just about trade?
   
• "disclosure of the legal advice could also affect the ability of the Legal Service to effectively defend decisions taken by the Council before the Union courts." 
  Begging the question that if the legal advice is solidly grounded in law, there should be no difficulty defending it before the Courts - regardless of whether it has been made public or not. Again, this raises concern about the content of the opinion.
   
• "the Legal Service could come under external pressure which could affect the way in which legal advice is drafted and hence prejudice the possibility of the Legal Service to express its views free from external influences".
  This is a most disturbing thought in a rule-of-law system which values judicial independence, such as the EU. It is the task of a legal service to verify compliance of proposals with the law, and on that basis provide advice as to whether the proposal is acceptable or not. Transparency does not imperil free expression of lawyers - governmental secrecy and influence might be the much bigger threat.
  
   

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7 December 2018
Ref. 18/2306-mj/jg
Requests made on: 22.11.2018

Dear Ms Eyckmans,

Thank you for your request for access to "the legal opinion of the Council on the proposed Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part and the Kingdom of Morocco, of the other part". 

Document 10738/18 RESTREINT UE/EU RESTRICTED was identified as corresponding to your request.

This document is a Contribution of the Council Legal Service which discusses legal questions related to the draft agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco (hereinafter "draft agreement") on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on the one part, and the Kingdom of Morocco, on the other part (hereinafter "Association Agreement").

This document is classified at the level of RESTREINT UE/EU RESTRICTED, meaning that it contains information the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States: 

The requested contribution of the Council Legal Service examines the consistency of the draft agreement with regard to:
- the negotiating directives accompanying the Council decision of 29 May 2017 authorising the Commission to open negotiations with Morocco on the adaptation of the Protocols to the Association Agreement;
- the judgment of the Court of Justice of 21 December 2016 in Case C-104/16 P (Council v. Front Polisario). 

The document consequently contains legal advice touching upon issues which relate to the conduct of the international relations of the Union. 

In view of its subject-matter, disclosure of the advice and the issues with which it deals would undermine the protection of international relations under Article 4(1)(a) third indent of 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. As the biggest part of the contribution analyses the draft agreement in the light of the negotiation directives attached in the Council decision of 29 May 2017, its disclosure would make publically known information on the scope and the objectives of the negotiation mandate at a time when the agreement is not yet adopted.

In addition, the legal issues discussed in the contribution go beyond the present file and the analysis provided therein could be transposed each time an agreement between the same parties is envisaged. In particular, this analysis is relevant as regards the new Fisheries Partnership Agreement between the EU and Morocco to be concluded in the near future. It appears, therefore, that the legal advice contained in the requested contribution is of a wide scope affecting future files.

Disclosure of such a document would therefore undermine the protection of legal advice under Article 4(2), second indent, of Regulation (EC) No 1049/2001. It would make known to the public an internal opinion of the Legal Service, intended for the members of the Council. Moreover, disclosure of the legal advice could also affect the ability of the Legal Service to effectively defend decisions taken by the Council before the Union courts. Lastly, the Legal Service could come under external pressure which could affect the way in which legal advice is drafted and hence prejudice the possibility of the Legal Service to express its views free from external influences.

Moreover, the decision-making process to which the requested contribution refers to is currently ongoing. At the current stage, the consent of the European Parliament is required. Disclosure of the legal advice would hence carry the risk compromising the capacity of reaching an agreement on the dossier and thus undermine the decision-making process of the Council pursuant to Article 4(3) first subparagraph of Regulation (EC) No 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 indicated interest so as to justify disclosure of the document.

In the view of the foregoing, the General Secretariat of the Council is unable to grant you access to this document. Partial access shall also be refused, the requested contribution being covered in its entirety by the aforementioned exceptions provided by Regulation (EC) No 1049/2001.

You can ask the Council to review this decision within 15 working days of receiving this reply (confirmatory application). 

Yours sincerely,

Paulo VIDAL