EU: The Guardian secrecy case decision
01 November 1995
The European Court of Justice decided on 19 October that the European Council had been operating a systematic ban on the disclosure of documents which might reveal the position taken by EU member states in discussions. The Court annulled the Council's decision to refuse the Guardian access to minutes and reports from Council meetings and was a victory for openness in the workings of the Council. But the five judges of the Court of First Instance, the junior branch of the ECJ, stopped short of taking on the general argument put by the Guardian for a citizen's fundamental right of access to EU legislative documents (see Statewatch, vol 3 no 6; vol 4 nos 1, 2, 3, 4 & 5; vol 5 nos 2, 4 & 5).
John Carvel, then the Guardian's European Affairs Editor, applied for preparatory reports, minutes, attendance and voting records for meetings of the Council of Social Affairs Ministers, the Council of Justice and Home Affairs Ministers and the Council of Agriculture Ministers. He was sent documents on the Social Affairs Council but was later told by the Council that the material: "should not have been sent to you.. this information was sent because of an administrative error". The Guardian lodged its case with the ECJ in Luxembourg in May 1994 and was joined in the action by the Danish and Netherlands governments and the European Parliament.
The judgement to annul the Council's refusal to supply the requested information rested on its failure to "genuinely balance the interests of the citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its deliberations". The Guardian's argument that the Council was operating a "blanket ban" was supported by evidence from the Danish and Netherlands governments. Their evidence, the court found, showed "the manner in which the adoption of the contested decisions was discussed" and that "no specific assessment of the interests involved" was discussed.
The decision
The court found in effect that the Council had broken its own rules for considering requests for information. These rules are set out in three documents: 1) a Code of Conduct concerning public access to Council and Commission documents (adopted 6 December 1993); 2) the Council's Rules of Procedure by Decision (adopted 6 December 1993); and 3) the Council's Decision on public access to Council documents (adopted 20 December 1993). Under this last Decision that Council empowered itself to refuse information where: "its disclosure could undermine: the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations)" (Article 4.1).
While under Article 4.2 access was to be "refused in order to protect the confidentiality of the Council's proceedings". The Council's defence primarily rested on its argument that the positions taken by member states in "negotiations" (their perception of the Council's legislative-making process) had to remain secret of it would undermine the whole process.
The Guardian's case rested on:
"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".
The court side-stepped the underlying arguments and only came to a view on the refused requests.
Two weeks before the ECJ decision the Council, seeking to preempt the judgement, agreed that in future the minutes of "legislative acts" should be made available "save in exceptional cases". These "exceptions" being those in Article 4.1 referred to above. The Council has until mid-December to comply with the judgement or appeal against it to the full European Court of justice.
The background
The battle over secrecy and transparency in the EU started before the Cou