20Ruling on the third part of the third plea in law, to the effect that a strict interpretation of the ‘authorship rule’ would require the Council to disclose the identity of the States which submitted documents relating to Decision 2002/848 as well as the exact nature of those documents in order to enable the then applicant to apply to their authors for access to those documents, the Court of First Instance ruled as follows in paragraphs 91 to 99 of the judgment under appeal:91 It should be noted at the outset that the applicant's argument is essentially based on old case-law relating to the Code of conduct of 6 December 1993 concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41; “the code of conduct”) implemented by Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43) and by Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58).92 Under the code of conduct, where the author of the document held by an institution was a third person, the application for access was to be sent direct to that person. The Court concluded from this that the institution was required to inform the person concerned of the identity of the author of the document so that he could contact that author directly ([Case C-41/00 P] Interporc v Commission [[2003] ECR I-2125], paragraph 49).93 However, under Article 4(4) and (5) of Regulation No 1049/2001, it is for the institution in question itself to consult the third party who is the author unless the correct response, affirmative or negative, to the request for access is inherently obvious. In the case of the Member States, they may request that their agreement be provided.94 The authorship rule, as referred to in the code of conduct, therefore underwent a fundamental change in Regulation No 1049/2001. As a result, the identity of the author assumes much less importance than under the previous rules.95 In addition, for sensitive documents, Article 9(3) of Regulation No 1049/2001 provides that such documents “shall be recorded in the register or released only with the consent of the originator”. It must therefore be held that sensitive documents are covered by a derogation the purpose of which is clearly to guarantee the secrecy of their content and even of their existence.96 The Council was therefore not obliged to disclose the documents in question, of which States are the authors, relating to the adoption of Decision 2002/848, including the identity of those authors, in so far as, firstly, those documents are sensitive documents and, secondly, the States responsible for them have refused to agree to their disclosure.97 It must be observed that the applicant disputes neither the legal basis put forward by the Council, namely Article 9(3) of Regulation No 1049/2001, which implies that the documents concerned are considered to be sensitive, nor the fact that the Council obtained an adverse opinion from the States responsible for the documents concerned.98 For the sake of completeness, there is no doubt that the documents in question are sensitive documents. ... Moreover, in view of the presumption of legality attaching to any statement of an institution, it should be noted that the applicant has not adduced any evidence that the Councils statement — that it had received an adverse opinion from the States concerned — is erroneous.99 Consequently, the Council was fully entitled to refuse to disclose the documents in question, including the identity of their authors.’
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