The Decision tested: the Swedish journalist union case
On 17 June 1998 the Court of First Instance annulled a decision by the Council of the European Union to refuse access to the Swedish Journalist Union (requested by Tidningen Journalisten, the Union's newspaper) 16 documents largely concerning Europol. This "victory" for the Journalists Union follows, and build on, the successful case taken out by John Carvel of the Guardian (see Statewatch, vol 3 no 6, vol 4 nos 1, 2, 3, 4 & 5, vol 5 nos 2, 4, 5 & 6). The Union had filed their case on 22 September 1995 and the case was heard in court in Luxembourg on 17 September 1997.
The challenge to the Council's policy over access to documents started soon after Sweden joined the EU in 1995 when the Union applied to the Swedish government for 20 Council documents on Europol. Eighteen of the 20 documents were provided with some sections blanked out. In May the Union asked the Council of Ministers for the same set of 20 documents. On 1 June the Council supplied just two of the documents and a confirmatory application (appeal) led to two further documents being supplied on 6 July, making 4 out of 20 documents.
In response to the initial application the Council claimed access was refused on the grounds of the need to maintain the confidentiality of its proceedings (Article 4.2 of the 1993 Decision on access). At the second, confirmatory, stage the Council of Ministers claimed that their disclosure would be harmful to the "public interest" (Article 4.1) and were covered by confidentiality (Article 4.2) as the documents mentioned the views of member states.
The Council was joined in the action by the governments of France and the UK. The case started under the previous Conservative government and the new Labour government chose not to withdraw. The governments of Denmark, Netherlands and Sweden intervened in support of the Swedish Journalist Union.
The first strategy of the Council, and the two supporting governments, was to challenge the admissibility of the Union's case partly on the grounds that they were already in possession of the documents in question.
The Court's judgement on the issue is emphatic: "the fact that the requested documents were already in the public domain is irrelevant" (para 69). The objective of the 1993 Council Decision on access to document is, says the Court, to give "effect to the largest possible access for citizens to information with a view to strengthening the democratic character of the institutions". Nor, the Court states, do citizens have to give "reasons for seeking access to requested documents". By virtue of the fact of refusal of access an interest in challenging the decision is established.
The French and UK governments also tried to challenge the right to the Court of First Instance to even consider access to documents concerning Title VI of the Maastricht Treaty (the "third pillar") which concern intergovernmental cooperation. The Court gave this argument short thrift too - their jurisdiction covers the implementation of the 1993 Decision because there is no provision in it to exclude Title VI.
The substance of the case the Court decided centred on the misapplication of the 1993 Decision by the Council. (1) The Court said the 1993 Decision gave citizens "rights of access to documents" (para.109) - a view contested by the Council and by the UK and France who argued there was no such "right". There are two categories of exception to access set out in Article 4 of the Decision but following the judgement in WWF UK v Commission  these exceptions had to be "construed and applied restrictively so as not to defeat the general principle enshrined in the decision" (para 110). Also under the WWF UK judgement and that of Interporc "particular reasons" must be given for refusal of access. In this case the Council had given a confusing response to the applicant which invoked both the exceptions based on the protection of the public interest (public security), Article 4.1, and the need to protect the security of its proceedings, Article 4.2, without making clear which applies to each refused document.
One of the most interesting aspects of the Court's judgement is its findings on the concept of "public security". The case-law of the Court of Justice showed that it covers "internal security" and "external security" as well as the interruption of essential services and "could equally well encompass.. attempts of authorities to prevent criminal activities" (para 121).
Although the Court did not call for copies of the documents in question it did have before it a note summarising the contents of each of the refused documents - given to the applicant's lawyers - from Mr Elsen, Director-General of the Council Justice and Home Affairs Directorate (DG H). The Court, in an important statement, was thus able to distinguish between documents concerned with "operational matters of Europol itself" (which none of the documents covered) and the negotiations (including the views of EU governments) on the adoption of the Europol Convention (which the documents did cover). The Court therefore observed that there was no evidence that disclosure would "be liable to prejudice a particular aspect of public security". The Court seems here to be creating a crucial distinction between policy making (which properly belong in the public sphere) and particular (specific) operational matters (which do not).
The Court thus annulled the decision of the Council to refuse access to the documents to the Swedish Journalists Union. The Court was however very annoyed at the placing on the internet of the Council's defence and ordered the Council to pay two-thirds of the applicant's costs as well as its own.
The Swedish Journalists Union won the case and in doing so enabled the Court of Justice to emphatically assert its jurisdiction over access to documents concerning Title VI (the third pillar).
What were they hiding?
In their evidence to the Court the Netherlands government which had access to all the refused documents drew to the Court's attention that four of the refused documents had later been given to "a journalist, Mr T..." - a barely disguised reference to Statewatch's editor Tony Bunyan. As all the refused documents are to hand it is worth looking at some of them to see exactly what the Council was so concerned to keep secret:
1: Sets out the conclusions of a meeting of the Working Party on Europol on the draft Convention covering the objectives, liaison officers, information to be held (later covered in the "analysis files"), and the right of information (doc no.4269/95).
2: The Opinion of the Council Legal Service on whether Joint Actions adopted under Article K.3(2)(b) of Title VI are legally binding which concluded that they are "obligatory in law and that the extent of the obligation on the Member States depends on the content and the terms of each joint action" (doc no.12264/94).
3: The work programme of the incoming French Presidency on immigration and asylum for Steering Group I (doc no.12394/94).
4: The work programme of the incoming French Presidency on legal cooperation for Steering Group III (doc no.12239/94).
5: A draft of the Joint Action on the Europol Drugs Unit of 20 January 1995 which was adopted by the Justice and Home Affairs Council in March 1995 (no doc.no).
6: "Compromise proposal on security and confidentiality in accessing and processing data" in the Europol Convention (doc no.4268/95).
7: Annual report on the activities of the Europol Drugs Unit for 1994 (doc no,4533/95)
8: Note from Europol Drugs Unit, dated 17 February 1995, to the Europol Working Party asking for extra expenditure on the "Support of operational and intelligence activities of law-enforcement agencies within the European Union".
9: Document concerning the extension of the mandate of the Europol Drugs Unit dated 30 March 1995.
10: The proposed extension of the mandate of the Europol Drugs Unit to cover "clandestine immigration networks" (doc no.6517/95).
What is clear from an examination of the documents in question is that although most do concern "Europol" many actually refer to its predecessor the "Europol Drugs Unit (EDU)". The latter should properly be in the public domain not just because they concern policymaking (extending the remit of the EDU) but because they also concern the development of policy in practice short of concerning a particular and specific operation.
Moreover if these documents had been available in May 1995, instead of nearly two years later, some would certainly have led to public concern and debate.
1. Case T-174/95, Svenska Journalistforbundet v. Council, 17 June 1998. Judgment: Court of First Instance Intervenors: Sweden, Denmark, Netherlands (for the applicant); UK and France (for Council) Background of applicant: Swedish journalists' association
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