EU: Guardian secrecy case
01 March 1995
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 fu