Support our work: become a Friend of Statewatch from as little as £1/€1 per month.
JUDGMENT OF THE COURT
6 December 2001 (1)
(Appeal - Public right of access to Council documents - Council Decision 93/731/EC - Exceptions to access to documents - Protection of the public interest concerning international relations - Partial access)
In Case C-353/99 P,
Council of the European Union, represented by J. Aussant, G. Maganza and M. Bauer, acting as Agents, with an address for service in Luxembourg,
Kingdom of Spain, represented by R. Silva de Lapuerta, acting as Agent, with an address for service in Luxembourg,
intervener on appeal,
APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 19 July 1999 in Case T-14/98 Hautala v Council  ECR II-2489, seeking to have that judgment set aside,
the other parties to the proceedings being:
Heidi Hautala, Member of the European Parliament, represented by O.W. Brouwer and T. Janssens, Avocats, with an address for service in Luxembourg,
applicant at first instance,
Kingdom of Denmark, represented by J. Molde, acting as Agent, with an address for service in Luxembourg,
United Kingdom of Great Britain and Northern Ireland, represented by J.E. Collins, acting as Agent, and H. Davies, Barrister, with an address for service in Luxembourg,
interveners on appeal,
Republic of Finland, represented first by H. Rotkirch and then by T. Pynnä, acting as Agents, with an address for service in Luxembourg,
Kingdom of Sweden, represented by A. Kruse, acting as Agent, with an address for service in Luxembourg,
interveners at first instance,
composed of: G.C. Rodríguez Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet, V. Skouris, J.N. Cunha Rodrigues (Rapporteur) and C.W.A. Timmermans, Judges,
Advocate General: P. Léger,
Registrar: D. Louterman-Hubeau, Head of Division,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 13 March 2001,
after hearing the Opinion of the Advocate General at the sitting on 10 July 2001,
gives the following
'1 The Final Act of the Treaty on European Union signed at Maastricht on 7 February 1992 contains a Declaration (No 17) on the right of access to information (hereinafter Declaration No 17), which states:
The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions.
2 At the close of the European Council in Birmingham on 16 October 1992, the Heads of State and of Government issued a declaration entitled A Community close to its citizens (Bull. EC 10-1992, p. 9), in which they stressed the need to make the Community more open. That commitment was reaffirmed by the European Council in Edinburgh on 12 December 1992 (Bull. EC 12-1992, p. 7).
3 On 5 May 1993 the Commission addressed to the Council, the Parliament and the Economic and Social Committee Communication 93/C 156/05 on public access to the institutions' documents (OJ 1993 C 156, p. 5). It contained the results of a comparative survey on public access to documents in the Member States and some non-member countries, and concluded that there was a case for developing further the access to documents at Community level.
4 On 2 June 1993 the Commission adopted Communication 93/C 166/04 on openness in the Community (OJ 1993 C 166, p. 4), setting out the basic principles governing access to documents.
5 At the European Council in Copenhagen on 22 June 1993, the Council and the Commission were invited to continue their work based on the principle of citizens' having the fullest possible access to information (Bull. EC 6-1993, p. 16, point I.22).
6 Within the framework of these preliminary steps towards implementing the principle of transparency, the Council and the Commission approved on 6 December 1993 a Code of Conduct concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41, hereinafter the Code of Conduct), aimed at establishing the principles to govern access to documents held by them.
7 The Code of Conduct sets out the following general principle:
The public will have the widest possible access to documents held by the Commission and the Council.
8 Document is defined as any written text, whatever its medium, which contains existing data and is held by the Council or the Commission.
9 The circumstances which may be relied on by an institution as grounds for rejecting a request for access to documents are listed in the Code of Conduct in the following terms:
The institutions will refuse access to any document whose disclosure could undermine:
- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),
They may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.
10 The Code of Conduct further provides:
The Commission and the Council will severally take steps to implement these principles before 1 January 1994.
11 In order to put that undertaking into effect, the Council adopted on 20 December 1993 Decision 93/731/EC on public access to Council documents (OJ 1993 L 340, p. 43).
12 Article 4(1) of Decision 93/731 provides:
Access to a Council document shall not be granted where its disclosure could undermine:
- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),
Facts of the case
'13 [Ms Hautala] is a Member of the European Parliament.
14 On 14 November 1996 she put a written question to the Council (Written Question P-3219/96, OJ 1997 C 186, p. 48) seeking clarification of the eight criteria for arms exports defined by the European Council in Luxembourg in June 1991 and in Lisbon in June 1992. In particular, she asked the following questions:
What will the Council do to put an end to violations of human rights which are assisted by arms exports from EU Member States? What are the reasons for the secrecy surrounding the guidelines which the Council's Working Group onConventional Arms Exports has proposed to the political committee with a view to clarifying the criteria?
15 The Council answered on 10 March 1997, stating in particular:
One of the eight criteria concerns the respect of human rights in the country of final destination, an issue of concern to all Member States. Exchanges between Member States on this and other aspects of arms export policy take place within the Common Foreign and Security Policy (CFSP) Working Group on Conventional Arms Exports, which has been charged with giving particular attention to the implementation of the eight criteria, with a view to reaching a common interpretation thereof.
At its meeting of 14-15 November 1996, the Political Committee [of the Council] approved a report from the Working Group on Conventional Arms Exports, with a view to further enhancing the consistent implementation of the common criteria. The Political Committee also agreed that the Group should continue to follow this matter closely.
Actual decisions on the granting of export licences remain, however, a matter for national authorities. The Council is therefore not in a position to comment on individual export authorisations or on national public information policies in this area.
16 By letter of 17 June 1997, addressed to the Secretary-General of the Council, [Ms Hautala] asked to be sent the report mentioned in the Council's answer (hereinafter the contested report).
17 The contested report was approved by the Political Committee but not by the Council. It was drawn up under the COREU special European correspondence system - adopted by the Member States and the Commission in 1995 within the framework of the CFSP in application of Title V of the Treaty on European Union - and was not distributed through the normal channels of distribution of Council documents. In the Council's practice, the COREU network is reserved for questions falling within Title V. Distribution of documents transmitted via the COREU network is restricted to a limited number of authorised recipients in the Member States, the Commission and the General Secretariat of the Council.
18 By letter of 25 July 1997, the General Secretariat of the Council refused access to the contested report under Article 4(1) of Decision 93/731, stating that it contained highly sensitive information disclosure of which would undermine the public interest, as regards public security.
19 By letter of 1 September 1997, [Ms Hautala] made a confirmatory application, in accordance with Article 7(1) of Decision 93/731.
20 The confirmatory application was considered by the Information Working Party of the Committee of Permanent Representatives at its meeting of 24 October 1997 and by the members of the Council at its meeting of 3 November 1997, following which the necessary simple majority considered that a negative reply should be given. Four delegations were in favour of releasing the document.
21 By letter of 4 November 1997 (hereinafter the contested decision), the Council rejected the confirmatory application, in the following terms:
I refer to your letter of 1 September 1997 in which you make a confirmatory application, pursuant to Article 7(1) of Decision 93/731/EC, for access to [the contested report].
Your application was reviewed by the Council on the basis of an examination of the document in question.
As a result of this consideration, the Council has concluded that disclosure of [the contested report] could be harmful for the EU's relations with third countries.
Access to the document in question is therefore to be refused by virtue of Article 4(1) of Decision 93/731/EC in order to protect the public interest with regard to international relations.
22 The contested report prompted the Council to adopt, on 8 June 1998, a code of conduct for arms exports. That code was published.
The contested judgment
'40 It should be noted, first, that under Article 113 of its Rules of Procedure the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
41 The fact that the contested report comes under Title V of the Treaty on European Union has no effect on the jurisdiction of the Court. The Court has already held in [Case T-174/95 Svenska Journalistförbundet v Council  ECR II-2289], paragraphs 81 and 82, that Decision 93/731 applies to all Council documents, irrespective of their content. It also held that, under Article J.11(1) of the Treaty on European Union (Articles J to J.11 of that Treaty have been replaced by Articles 11 to 28 EU), acts adopted pursuant to Article 151(3) of the EC Treaty (now, after amendment, Article 207(3) EC), which is the legal basis for Decision 93/731, are applicable to measures within the scope of Title V of the EU Treaty.
42 Thus, in accordance with the conclusion reached in Svenska Journalistförbundet (paragraph 85), documents relating to Title V of the Treaty on European Union are covered by Decision 93/731 in the absence of provisions to the contrary. The fact that under Article L of that Treaty [(now, after amendment, Article 46 EU)] the Court of First Instance does not have jurisdiction to assess the lawfulness of acts falling within Title V thus does not exclude its jurisdiction to rule on public access to those acts.
'75 As regards the third argument [of the first plea], which is supported by the Swedish Government, namely that the Council infringed Article 4(1) of Decision 93/731 by refusing to grant access to the passages in the contested report which are not covered by the exception based on protection of the public interest, it should be observed that the Council considers that the principle of access to documents applies only to documents as such, not to the information contained in them.
76 It is thus for the Court to verify whether the Council was obliged to consider whether partial access could be granted. Since this is a question of law, review by the Court is not limited.
77 Decision 93/731 is a measure of internal organisation adopted by the Council on the basis of Article 151(3) of the EC Treaty. In the absence of specific Community legislation, the Council determines the conditions for dealing with requests for access to its documents (see, to that effect, Case C-58/94 Netherlands v Council  ECR I-2169, paragraphs 37 and 38).Consequently, if the Council so wished, it could decide to grant partial access to its documents, under a new policy.
78 Decision 93/731 does not expressly require the Council to consider whether partial access to documents may be granted. Nor, as the Council accepted at the hearing, does it expressly prohibit such a possibility.
79 In view of the above, the basis on which the Council adopted Decision 93/731 must be borne in mind for the purpose of interpreting Article 4 of that decision.
80 Declaration No 17 recommended that the Commission should submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions. That commitment was restated at the European Council in Copenhagen on 22 June 1993, which invited the Council and the Commission to continue their work based on the principle of citizens' having the fullest possible access to information.
81 In the preamble to the Code of Conduct, the Council and the Commission refer expressly to Declaration No 17 and the conclusions of the European Council in Copenhagen as the basis for their initiative. The Code of Conduct states the general principle that the public will have the widest possible access to documents.
82 Furthermore, the Court of Justice stressed in Netherlands v Council, paragraph 35, the importance of the public's right of access to documents held by public authorities. The Court of Justice noted that Declaration No 17 links that right with the democratic nature of the institutions. In his Opinion in that case ( ECR I-2171, point 19), the Advocate General stated, with reference to the individual right to information, as follows:
Instead, the basis for such a right should be sought in the democratic principle, which constitutes one of the cornerstones of the Community edifice, as enshrined now in the Preamble to the Maastricht Treaty and Article F [of the Treaty on European Union, now, after amendment, Article 6 EU] of the Common Provisions.
83 The Court of First Instance recently held in Svenska Journalistförbundet, paragraph 66, referring to Netherlands v Council, that:
The objective of Decision 93/731 is to give effect to the principle of the largest possible access for citizens to information with a view to strengthening the democratic character of the institutions and the trust of the public in the administration.
84 Next, it should be noted that where a general principle is established and exceptions to that principle are then laid down, the exceptions should be construed and applied strictly, in a manner which does not defeat the application of the general rule (see, to that effect, [Case T-105/95 WWF UK v Commission  ECR II-313], paragraph 56, and [Case T-124/96 Interporc v Commission  ECR II-231], paragraph 49). In the present case, the provisions to be construed are those of Article 4(1) of Decision 93/731, which lists the exceptions to the above general principle.
85 Furthermore, the principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view (Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary  ECR 1651, paragraph 38). In the present case, the aim pursued by the Council in refusing access to the contested report was, according to the reasons stated in the contested decision, to protect the public interest with regard to international relations. Such an aim may be achieved even if the Council does no more than remove, after examination, the passages in the contested report which might harm international relations.
86 In that connection, the principle of proportionality would allow the Council, in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the interest in public access to those fragmentary parts against the burden of work so caused. The Council could thus, in those particular cases, safeguard the interests of good administration.
87 Accordingly, Article 4(1) of Decision 93/731 must be interpreted in the light of the principle of the right to information and the principle of proportionality. It follows that the Council is obliged to examine whether partial access should be granted to the information not covered by the exceptions.
88 As appears from paragraph 75 above, the Council did not make such an examination, since it considers that the principle of access to documents applies only to documents as such and not to the information contained in them. Consequently, the contested decision is vitiated by an error of law and must therefore be annulled.
89 It follows that there is no need for the Court to rule on the two other pleas in law put forward by [Ms Hautala] in support of her application.
Pleas in law and arguments of the parties
Findings of the Court
On those grounds,
1. Dismisses the appeal;
2. Orders the Council of the European Union to pay the costs;
3. Orders the Kingdom of Spain, the Kingdom of Denmark, the United Kingdom of Great Britain and Northern Ireland, the Republic of Finland and the Kingdom of Sweden to bear their own costs.
Delivered in open court in Luxembourg on 6 December 2001.
G.C. Rodríguez Iglesias
1: Language of the case: English.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: MayDay Rooms, 88 Fleet Street, London EC4Y 1DH. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.