EU: Openness: Victories in the court
01 May 1999
Heidi Hautala MEP has won her case the Council over access to Council documents concerning arms export licences. On 19 July the Court of First Instance said that the right of access is to be considered not just to "documents" but to the information contained in them. It therefore ruled that the Council did not make such an examination and annulled (overturned) the Council's refusal of access. The decision turned on the issue of granting "partial access" where information which "might harm international relations" is removed (ie: "struck out" with a felt pen) but granting access to the rest of the document. Applicants are refused many documents on the grounds that the "positions" (views) of EU member states are in the document. Ms Hautala said:
"The judgment is a major step in a campaign towards more transparency in the European Union. The Court has once again proved that it is the core institution, together with the European Ombudsman, that defends the fundamental principles of democracy. It is up to the European Commission and the EU Member States to make sure that the exceptions to openness are tightly defined, now that a new Regulation on access to documents is being prepared."
Ms Hautala sued the Council of Ministers in January 1998, after she was twice denied access to a report on the implementation of the eight criteria for arms exports in the EU Member States. The criteria were defined by the European Council in 1991 and 1992.
In another landmark decision announced on the same day by the Court of First Instance the court found that the Commission was wrong to refuse to give access to the minutes of "comitology" committee to Rothmans. The Commission tried, unsuccessfully, to argue that it was not the author of the documents.
A new code of access
In the last issue of Statewatch (vol 9 no 2) it was reported that the European Commission had prepared a draft Discussion paper on public access. It had been intended that this paper would be formally adopted and published by the Commission in June and be followed by a draft Regulation. However, it appear that the paper was withdrawn from the Commission's agenda. The draft Commission paper, widely criticised by voluntary groups, lawyers and MEPs, would have undermined the right of access to documents. The Finnish government had been expecting that both the discussion paper and the draft Regulation could be advanced during its Presidency of the EU. However, no further drafts are now expected until October.
The Utrecht-based Standing Committee of experts has stolen a march on the Commission by issuing a draft Proposal on the right of access to documents together with a detailed explanatory report. The Proposal preserves the essential definition of what constitutes a "document" which includes:
"all documents produced or considered by the [three] institutions or by the subsidiary organs of the said institutions if the bodies in question were set up by those institutions or if the said institutions participate in their functioning."
Sources: Judgement of the Court of First Instance, 19.7.99 in Case T-14/98, Heidi Hautala v Council; Judgement of the Court of First Instance, 19.7.99 in Case T-188/97, Rothmans v Council; Draft Regulation of the European Parliament and Council Regulation laying down the general principles and the limits of the citizenÆs right of access to documents of the European Parliament, the Council and the Commission, and its explanatory memorandum, drafted by Professor Deirdre Cutrin and Professor Herman Meijers for the Standing Committee of Experts in international migration, refugee and criminal law, July 1999, from: Postbus 201, 3500 AE Utrecht, Netherlands.