EU Openness latest (feature)
01 May 1998
Swedish journalists union win in court
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 .. nos). 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 ploy 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. The Court said the 1993 Decision gave citizens "rights of access to documents" (para.109) - a view contested by the Council, 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 [1997] 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 pro