Statewatch bulletin coverage of the case taken by the Guardian/John Carvel to the Court of Justice against the Council (see also "Secrecy and Openness in the European Union" by Tony Bunyan, Kogan Page, November 1999):

1.

European Union: Guardian secrecy case

Statewatch, vol 4 no 3, May-June 1994

The Guardian newspaper filed an application at the European Court of Justice in Luxembourg on 20 May accusing the governments of the European Union of violating fundamental principles of EU law by refusing to disclose documents from the Council of Ministers - the most secretive legislature in Western democracies (see Statewatch, vol 3 no 6; vol 4 nos 1 & 2).

The case arose when the Council (the permanent body representing the 12 EU governments) refused to provide background documents on the meeting of the Council of Justice and Interior Ministers in line with its commitment to provide "the widest possible access to documents". The Council did provide a set of background reports on a meeting of the Council of Social Affairs but later told Guardian journalist John Carvel that the material sent:

"should not have been sent to you. However, owing to the novelty of the procedure for allowing public access to documents of the Council and its practical implementation, this information was sent to you because of an administrative error".

The case lodged by the Guardian says the Council has misused its discretionary powers, shows a lack of reasoning and fails to balance the interests of confidentiality against the legitimate expectations of public access raised by the "code" it had adopted. It goes on to say:

"The legal order of the European Union has no chance whatsoever to develop further (or even survive) without the active

participation of the citizens of the union. What commitment can ever be asked from citizens vis-à-vis a legal order which is governed in secrecy and without effective democratic control?"

The newspaper's application has been presented to the lower-tier Court of First Instance in Luxembourg whose ambit was increased last year to cover complaints by citizens against the abuse of power by EU institutions. Although the case will take some time to be heard the Council is obliged to submit a defence of its actions within the next two months.

The case is being supported by the Netherlands government. In a statement to the General Affairs Council its delegation said:

"Netherlands voted against the code of conduct and the Council decision on 6 December 1993. The Netherlands has brought proceedings before the Court of Justice for the annulment of the decisions (Case c-58/94)... The criteria of confidentiality against the citizens right to obtain information [should be weighed] should such a weighing-up of interests in fact have taken place, the applicant ought to have been informed of this in a reasoned manner."

The basic objection of the Council to providing information is simply stated in its own words, information on its work (reports, minutes, background documents) have to be withheld "to protect the institution's interest in the confidentiality of its proceedings".

A democratic EU?

The outcome of this case has implications for the role of the European Parliament. Article K (or Title VI, "third pillar") of the Treaty of European Union, TEU, covers policing, immigration and judicial cooperation. Article K.6 says that the President of the Council and the Commission "shall regularly inform he European Parliament of discussions in the areas covered by this Title". It goes on to say that the parliament has to be consulted on "the principal aspects of activities" and that its views will be "duly taken into consideration", and further that it can question the Council on these areas and make recommendations. When the Treaty of Union into effect on 1 November 1993 the Council put Article K into effect immediately - the K4 Committee held its first meeting on 3 November - yet eight months later there is no process in place for effecting the relationship with the European Parliament set out above. The inter-institutional committee - involving the Council, Commission and Parliament -has left this job to the new parliament to effect in the autumn. Last July the EP took a report from the Civil Liberties and Internal Affairs Committee and passed a resolution on the parliament's demands for information, consultation and the right to make recommendations. The resolution said that the intergovernmental framework which kept justice and internal affairs matters outside of the competence of the Community was to be deplored and that this resulted in "a lack of effective parliamentary and judicial supervision and democratic procedures for decision-making in a field where the rights of the citizen are directly concerned".

On 27 May the Legal Affairs Committee of the EP voted unanimously to back the Dutch government's case in the Court of Justice. Labour spokesperson Christine Oddy said: The endemic secrecy surrounding Council business must be ended". Lord Inglewood, the Conservative spokesperson said: "The Council of ministers is probably the only legislature in the free world which meets behind closed doors, and that state of affairs should not continue".

The outcome of the cases brought by the Dutch government and the Guardian will determine the quality, or otherwise, of democracy in the EU and, inevitably, will set the limits for the role the EP will be allowed to play.

Public access to Council documents, Council decision 20.12.93 (93/731/EC); Guardian, 18, 19, 20, 28.4.94 & 21.5.94; Reply from the Council to the Guardian, General Affairs Council, ref: 5988/94 (Annexe I); Report on cooperation in the field of justice and internal affairs under the Treaty on European Union (Title VI and other provisions), 1.7.93, A3-0215/93; Resolution of the European Parliament, 15.7.93.

 

2.

EU SECRECY: To "gag" or not?

Statewatch, Vol 4 no 4, July-August 1994

The governing bodies of the European Union (EU) continue to be in confusion over the operation of secrecy rules agreed in December 1993 which have led to the Guardian newspaper taking out a case in the European Court of Justice (see Statewatch vol 3 no 6; vol 4 nos 1, 2 & 3).

The General Affairs Council on 16-17 May voted by 10 votes to 2 to confirm its rejection of the request for information made by Guardian journalist John Carvel. The two delegations voting against, the Netherlands and Denmark, were also opposed to "the systematic refusal of requests by private individuals for the release of minutes of Council meetings' and called for the rules to be relaxed. The Permanent Representatives Committee (COREPER, high-ranking officials from each of the 12 EU states) discussed possible compromises on 19 May and 9 June and agreed a new report again by 10 votes to 2.

This report proposed that in response to request for information which were to be refused there was to be "careful consideration to the arguments for or against a positive reply", and that if the full contents of the minutes of a Council had already been released to the press then they should be given to inquirer.

The most controversial proposal concerned the "Working Party on General Affairs" (English version) or "Groupe des Affaires Générales"(French version) - known as the GAG group - the English translation of the proper name of the group seems to have been calculated to avoid this acronym. The GAG group was to be empowered to circulate draft replies to confirmatory application (where an inquirer has been turned down and exercises their right to appeal against the decision) and agree by a majority on the course of action with COREPER and the full ministerial Council being bound by this decision - this was attacked on the grounds it gave too much power to middle-ranking officials. The report also said minutes should not be disclosed which "identify" the position of an individual country without the agreement of that country (a position the UK backs strongly).

At the June meeting of the General Affairs Council the item (no 20 on the agenda) was not even discussed. The Danish and Dutch put forward a new, amending proposal which sought to avoid a blanket "no" to whole areas of information. This proposal was watered down in meetings of the "Amis la Presidence" group and COREPER. At the General Affairs Council on 18 July a clear divide on the issue emerged with the amended amendment from Denmark and the Netherlands being rejected by 7 votes to 5 (Denmark,

Netherlands, UK, Spain and Ireland). Moreover, the delegations from Sweden, Norway and Finland, who attended as observers until full membership in 1995, expressed strong backing for the Danish-Dutch views.

Project de conclusions du conseil: Accèss du public aux documents du Conseil, JUR 131, 7450/94 Restricted; Report from the Presidency: Public access to Council documents, JUR 140, 7667/94, 9 June, Restricted; General Affairs Council, 16-17 May 1994, press release.

 

3.

EU: Secrecy case

Statewatch bulletin, Vol 4 no 5, September-October 1994

The European Council, which represents the 12 EU governments, has defended its practice of refusing to release documents to journalists and the public in its defence in the European Court of Justice in the case brought by the Guardian newspaper. The Guardian's case was lodged with the court in Luxembourg in May and the Council responded at the end of July (see Statewatch, vol 3 no 6; vol 4 nos 1, 2, 3, 4).

The Council, in asking the Court to reject the Guardian case, says that the repeated declarations by the EU Prime Ministers at Summit meetings for "transparency" and "openness" were no more than "policy orientations" and had no binding effect. These declarations were "of an eminently political nature and not binding on the community institutions". Further it maintains that it cannot make minutes and preparatory documents available because they would reveal the position of different governments who would feel "compromised" if their views were known. Its submission says:

"What is in fact at stake for the council is the basis on which it operates as an institution. It is, therefore, the functioning of the entire decision-making process of the community which is in question" (Emphasis in original).

What the submission in its defence does address is the fact that the Council is the only legislative body in Europe to deny access to the official record of its proceedings. In national parliamentary systems it is usual for governments to produce statements, reports, or "White Papers" in addition to parliamentary Bills prior to the adoption of policy and legislation, and to be open to questioning and debate. None of these "normal" procedure operate as far as the Council (and the various Councils of Ministers) is concerned - the first the press and public know of a new policy is when it has been agreed by all 12 states and is therefore not open to amendment.

The Guardian case has received backing from the Legal Affairs Committee of the European Parliament (unanimously), the European Trade Union Federation, the European Ecumenical Commission for Church and Society, the European Roundtable of Associations and Foundations, and the Norwegian Union of Journalists and from the Dutch and Danish governments.

Case T-194\94 J.Carvel and the Guardian Newspapers Ltd v. Council of the European Union.

 

4.

EU: Guardian secrecy case

Statewatch bulletin, Vol 5 no 2, March-April 1995

This article looks at the arguments presented to the European Court of Justice including the Council's refusal to hand over secret tape-recordings of its proceedings.

Lawyers for the Guardian newspaper and for the Council of the European Union (the Council) have now presented their cases to the European Court of Justice (ECJ). After time to consider the arguments the ECJ will hear verbal presentations from both sides and then give their judgement - possibly by the end of the year. The case arose when the Council (the permanent body representing the 15 EU governments) refused to supply background documents on meetings of the Council. These concerned the Council of Justice and Home Affairs Ministers and a set of background reports on a meeting of the Council of Social Affairs sent to the Guardian journalist John Carvel who was later told that the material: "should not have been sent to you... this information was sent to you because of an administrative error". The Guardian lodged its case with the Europe Court of Justice in Luxembourg in May 1994 and the Council first responded at the end of July 1994. The Council's refusal of access stemmed from the Code of Conduct adopted on 20 December 1993 governing access to its information (see Statewatch vol 3 no 6; vol 4 nos 1, 2, 3, 4 & 5).

The outcome of the case will be directly relevant to one of the key issues being considered by the planned Intergovernmental Conference of the EU in 1996, namely whether the Council will be allowed to continue to operate in secret in reaching decision which affect the rights of European citizens. In previous issues of Statewatch the opening arguments for both sides were covered. Here the responses from the Council and the Guardian are reviewed.

The Council's defence

The Council argue that in presenting their case the Guardian is seeking to question "the basic rule of the confidentiality of the Council's proceedings". It says that the applicant is posing "essentially a political question" (emphasis in original) by suggesting that:

"The crucial question is whether there is any valid reason in a community of democracies (other than self-interest by the Ministers in question) why their process of decision-making should not be subject to the scrutiny of the people whom they are representing and on whose account they are actually taking decisions?"

On the specific decision to refuse access to the requested information the Council argues that this was not:

"the result of a blanket ban on access to certain documents, but a decision lawfully taken by the Council, according to the rules under which it operates"

The answer to the argument that after the well-publicised decision by the European Council to ensure greater "transparency" (openness) there could be a "legitimate expectation" that access would be granted to reports considered by the different Councils of Ministers has, the Council suggests:

"the confidentiality clause still stands as the basic principle in spite of the new provisions on access to Council documents".

The Council argues that no backing for the Guardian's case can be found in Community law or the Treaty of European Union (Article F.2) which refers to the European Convention for the Protection of Human Rights. Nor in the UN Universal Declaration of Human Rights - which does include a reference to the right to seek information - because, according to the Council, the later International Covenant on Civil and Political Rights make no such reference. To the Council this was "highly indicative of a positive decision by the authors not to include a right of access to public information.." (emphasis in original).

The Council's contention that legislative decision-making at the EU level cannot be compared to that of national parliaments' makes curious reading. The Guardian's case rests on idea that the openness of the legislative procedure is a fundamental principle in Member states at least to the extent that proposed legislation is published and is open for public and parliamentary debate prior to its adoption. They go on to argue that Ministers have a legislative function "when they meet collectively in the Council". The Council's responds to this:

"It is the Council which adopts Community legislation but, in doing so, it does not function in a way comparable to that of a national legislative assembly... they fail to understand the true nature of Council proceedings and thus of Council documents which cannot simply be compared to Parliamentary papers. The Council operates through a process of international negotiation and compromise..."

It argues further that: "Council documents are thus much more akin to executive or administrative documents in Member States, relating for example to inter-ministerial meetings, than they are to Parliamentary papers". The Council seems to confuse "inter-ministerial meetings" which are held around a specific topic for discussion and the reports agreed by meetings of the Council of Ministers which are clearly legislation or policy-making. The Council case concludes by saying there is no fundamental principle of access to information:

"flowing either from the Convention of Human Rights or the constitutional traditions of Member States, that a right to seek information exists [and].. the Court could not properly deduce existence of such a fundamental principle".

The Guardian case

The Guardian's response is that the Council effectively operates a system of "automatic refusal of access to Council documents containing confidential information" and that the Council failed to properly balance the conflicting interests when refusing access to the documents. The case they say is supported by Article 10 of the European Convention on Human Rights, Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights. All 16 member states of the EU operate on the basis of openness of the legislative process. Moreover, the Guardian argues, only three of the 16 member states have "neither a constitutional provision on the general principle of access to administrative documents nor specific legislation, nor are they planning to introduce such legislation (Austria, Germany and the UK; Ireland is planning to introduce it).

"Loigate tapes"

The Guardian argues that for the ECJ to come to a proper judgement in their case the Council should submit to the Court:

"the minutes and tape recordings or transcripts of all meetings during which the Applicant's original request and confirmatory application were discussed"

Lawyers for the Council, which is based at rue de la Loi in Brussels, responded by saying that it was prepared to "produce, if the Court so orders, the relevant parts of the minutes of the meetings" but:

"the Council must underline that tape recordings, which only represent a technical tool to help in the drafting of Council minutes, are never let outside the institution; under guidelines fixed by the Council in 1952 and always applied since then, access to the tapes is reserved to the General Secretariat officials and, for the purposes of verifying the minutes, to the Presidency.." (italics added).

The Council, relying on "guidelines" drawn up and adopted by itself in 1952, is refusing access to the tapes of the meetings where the Guardian's request for information was discussed. The Guardian is arguing that the decision to refuse access to the information was taken without a "proper balancing of the interests". The decision to reject the requested information was taken on 16 May 1994 with Denmark and the Netherlands voting against.

The Council's refusal to give access to minutes of meetings and "preparatory" documents (reports or "legislation") is centred on their perceived need to keep secret the positions taken by governments - to expose this to public view would, they argue, hamper decision-making. The Guardian argue that minutes do not report all the interventions by governments in a meeting they merely summarise the conclusions and cite the minutes of a meeting of the Social Affairs Council - which the Guardian had been sent by the Council, was an "administrative error". They say that even if governments' positions were made public this might be embarrassing but "can hardly be described as leading to a breakdown of the decision-making process". The Guardian goes on to say of the Council's own description of its decision-making process:

"Substituting diplomacy for democracy can be considered a net reduction in the democratic legitimacy in all Member States".

And that the openness of the legislative process:

"is a universal principle recognised by all non-totalitarian regimes and may be considered a sine qua non of a democratic system of governance.. The adjective "democratic" can hardly be applied where legislative proceedings are secret".

The Guardian's case has been backed by over 30 organisations, the Dutch and Danish governments, and the European Parliament.

Reactions from Denmark and Sweden

At the General Affairs Council meeting on 6 March the Danish Foreign Minister, Niels Helveg Petersen, presented a Note critical of the secrecy of Council of Ministers meetings. The decisions of the European Councils (Summit meetings of Prime Ministers held twice a year) at Edinburgh in December 1992 and in Copenhagen in June 1993 on greater public access to information had not been followed through he argued.

Up to 1 January 1995 only 18 "open" debates of Council Ministers had been held - 9 under the Danish Presidency, 4 under the Belgian, 3 the Greek, and only 2 under the German.

The Danish government's note says that the "confidentiality" rule under the Code of Conduct is "particularly problematic when it is applied to the final phase of the legislative work of the Council" and had been "used systematically" to refuse access to minutes of meetings. They proposed that there should be

"automatic publication of the minutes of the Council relating to legislative work". However, this proposal would not, as framed, affect the majority of decisions taken under the "third pillar" which are usually Recommendations or Conclusions to be adopted at national level.

No decision was made at the meeting but the number of countries favouring greater "openness" now includes Denmark, the Netherlands, Sweden, Finland, Austria, Greece and Ireland - seven out of 15.

Statement of Reply of John Carvel and the Guardian Newspapers Ltd in Case T-194/94, 29.9.94; Rejoinder of the Council of the European Union in Case T-194/94, 16.11.94; Openness in the Legislative Work of the Council, Note from the Danish government (draft), February 1995.

 

5.

Guardian secrecy case

Statewatch bulletin, vol 5 no 4, July-August 1995

The Guardian secrecy case against the European Council finally reached the European Court of Justice in Luxembourg on 5 July. The six-person court sitting with the Irish judge-rapporteur, Judge Donai Barrington, is expected to give its decision in the autumn.

The case arose when the Council refused to supply background documents concerning the Council of Justice and Home Affairs Ministers and told Guardian journalist John Carvel that a set of reports he had been given on the Social Affairs Council: "should not have been sent to you.. this information was sent to you because of an administrative error".

Jill Aussant, the lawyer representing the Council refused to hand over tape recordings of meetings between Ministers or those of COREPER (the permanent committee of representatives from each EU state with ambassadorial status). The tapes, the Guardian argued, would show whether the Council in refusing to allow access to reports and minutes of meetings of Councils of

Ministers had reached a "balanced" decision. For the Council Ms Aussant said although the tapes - used to verify the accuracy of minutes - were stored in a "sound archive" they:

"are kept for a certain time, not in any great condition of safety. They are not sealed or signed... They are not authenticated and for that reason the Council considers that neither they nor any transcript from them have any probative value."

The Council also withheld from the court a memorandum from its Legal Service which admitted that applications for Council minutes were automatically rejected as distinct from the Council's assertion that all applications were given a "balanced consideration". Ms Aussant said it was "not appropriate" for documents from the Legal Service to be released which might wrongly be regarded as authoritative opinions of the Council. The Council's defence rested on the notion that decisions over the secrecy of its proceedings and access to information about its decisions was a political matter and not one for the ECJ. For the Guardian lawyer Onno Brouwer said:

"Only totalitarian regimes legislate in secret.. For generations citizens have been entitled to know the arguments used when legislators pass laws that citizens are expected to obey. They are entitled to the same standards when legislation is debated at a European level."

He argued that the Council was operating a blanket ban on the release of minutes and documents that might reveal disagreements among member states.

The court heard supporting arguments for the Guardian case from the European Parliament and the governments of Denmark and the Netherlands. Peter Biering for Denmark said:

"Access to documents of the legislative process is central to democratic control which has to be exercised by the electorate and press."

François Vainker, for the European Parliament, said:

"The Council has behaved unlawfully in failing to recognise the fundamental rights explained to you this morning." (A reference to Article F(2) of the Maastricht Treaty saying fundamental rights would be respected "as they result from constitutional traditions commons to member states")

Mr Vainker went to argue that in transferring powers from national parliaments to the Council governments were under an obligation not to dilute the openness of the legislative process typical in member states. Under the "first pillar" (economic and social affairs) the European Parliament using its powers of co-decision conducted its debates on precisely the same legislation as the Council in full public view. Ms Aussant argued that the Council could not be regarded as a traditional legislature because it simultaneously performs the role as an "organ of collective diplomacy".

Guardian 6.7.95; Irish Times, 6.7.95; see Statewatch, vol 3 no 6; vol 4 nos 1, 2, 3, 4 & 5; vol 5 no 2.

 

6.

EU: The Guardian secrecy case decision

Statewatch bulletin, vol 5 no 6, Nov-Dec 1995

The European Court of Justice decided on 19 October that the European Council had been operating a systematic ban on the disclosure of documents which might reveal the position taken by EU member states in discussions. The Court annulled the Council's decision to refuse the Guardian access to minutes and reports from Council meetings and was a victory for openness in the workings of the Council. But the five judges of the Court of First Instance, the junior branch of the ECJ, stopped short of taking on the general argument put by the Guardian for a citizen's fundamental right of access to EU legislative documents (see Statewatch, vol 3 no 6; vol 4 nos 1, 2, 3, 4 & 5; vol 5 nos 2, 4 & 5).

John Carvel, then the Guardian's European Affairs Editor, applied for preparatory reports, minutes, attendance and voting records for meetings of the Council of Social Affairs Ministers, the Council of Justice and Home Affairs Ministers and the Council of Agriculture Ministers. He was sent documents on the Social Affairs Council but was later told by the Council that the material: "should not have been sent to you.. this information was sent because of an administrative error". The Guardian lodged its case with the ECJ in Luxembourg in May 1994 and was joined in the action by the Danish and Netherlands governments and the European Parliament.

The judgement to annul the Council's refusal to supply the requested information rested on its failure to "genuinely balance the interests of the citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its deliberations". The Guardian's argument that the Council was operating a "blanket ban" was supported by evidence from the Danish and Netherlands governments. Their evidence, the court found, showed "the manner in which the adoption of the contested decisions was discussed" and that "no specific assessment of the interests involved" was discussed.

The decision

The court found in effect that the Council had broken its own rules for considering requests for information. These rules are set out in three documents: 1) a Code of Conduct concerning public access to Council and Commission documents (adopted 6 December 1993); 2) the Council's Rules of Procedure by Decision (adopted 6 December 1993); and 3) the Council's Decision on public access to Council documents (adopted 20 December 1993). Under this last Decision that Council empowered itself to refuse information where: "its disclosure could undermine: the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations)" (Article 4.1).

While under Article 4.2 access was to be "refused in order to protect the confidentiality of the Council's proceedings". The Council's defence primarily rested on its argument that the positions taken by member states in "negotiations" (their perception of the Council's legislative-making process) had to remain secret of it would undermine the whole process.

The Guardian's case rested on:

"whether there is any valid reason in a community of democracies (other than self-interest by the Ministers in question) why their process of decision-making should not be subject to the scrutiny of the people whom they are representing and on whose account they are actually taking decisions".

The court side-stepped the underlying arguments and only came to a view on the refused requests.

Two weeks before the ECJ decision the Council, seeking to preempt the judgement, agreed that in future the minutes of "legislative acts" should be made available "save in exceptional cases". These "exceptions" being those in Article 4.1 referred to above. The Council has until mid-December to comply with the judgement or appeal against it to the full European Court of justice.

The background

The battle over secrecy and transparency in the EU started before the Council introduced the December 1993 measures. In February 1992 the Commission proposed a Council Regulation to introduce official secrecy classifications for documents and to introduce security vetting of staff employed in sensitive areas. The proposal passed through the Commission as an uncontentious item but was vigorously opposed by the European Parliament and the International Federation of Journalists. The campaign against the Regulation caused much embarrassment during the first Danish "No" vote on the Maastricht Treaty and was quietly withdrawn in the interests of "subsidiarity" at the Edinburgh Summit in December 1992.

But at the same time the Council agreed the three measures on public access and the Rules of Procedure in December 1993 it also tried to re-introduce the secrecy classifications and staff vetting. The draft "Council Decision on classified-information security and protected measures applicable to the General Secretariat of the Council in the implementation of Titles V and VI of the Treaty of European Union" was blocked by the Netherlands and Denmark. As unanimity is required on such a proposal it remains on the table.

The balance on the Council on the linked issues of secrecy classifications and "transparency" (public access) has shifted over the last year. The Netherlands and Denmark have been joined by Sweden and Finland in opposition and on occasion by Ireland, the UK, Austria, Greece and sometimes Spain. While a substantial minority can be mustered to oppose the introduction of secrecy measures there is not a majority for greater openness.

Writing after the judgement John Carvel described the process of media reporting on meetings of the Councils of Ministers: "The journalists usually made a reasonable attempt at piecing together several sets of half-truths into more or less accurate reports". This kind of reporting will continue until all Council measures are published well in advance so that an open democratic debate can take place before their adoption.

Press release, European Court of Justice, 19.10.95; Judgement of the Court of First Instance, case T-194/94; see Statewatch vol 3 no 6; vol 4 nos 1, 2, 3, 4, & 5; vol 5 nos 2, 4 & 5.