EU: Guardian secrecy case (1)
01 July 1995
The Guardian secrecy case against the European Council finally reached the European Court of Justice in Luxembourg on 5 July. The six-person court sitting with the Irish judge-rapporteur, Judge Donai Barrington, is expected to give its decision in the autumn.
The case arose when the Council refused to supply background documents concerning the Council of Justice and Home Affairs Ministers and told Guardian journalist John Carvel that a set of reports he had been given on the Social Affairs Council: "should not have been sent to you.. this information was sent to you because of an administrative error".
Jill Aussant, the lawyer representing the Council refused to hand over tape recordings of meetings between Ministers or those of COREPER (the permanent committee of representatives from each EU state with ambassadorial status). The tapes, the Guardian argued, would show whether the Council in refusing to allow access to reports and minutes of meetings of Councils of Ministers had reached a "balanced" decision. For the Council Ms Aussant said although the tapes - used to verify the accuracy of minutes - were stored in a "sound archive" they:
"are kept for a certain time, not in any great condition of safety. They are not sealed or signed... They are not authenticated and for that reason the Council considers that neither they nor any transcript from them have any probative value."
The Council also withheld from the court a memorandum from its Legal Service which admitted that applications for Council minutes were automatically rejected as distinct from the Council's assertion that all applications were given a "balanced consideration". Ms Aussant said it was "not appropriate" for documents from the Legal Service to be released which might wrongly be regarded as authoritative opinions of the Council.
The Council's defence rested on the notion that decisions over the secrecy of its proceedings and access to information about its decisions was a political matter and not one for the ECJ.
For the Guardian lawyer Onno Brouwer said:
"Only totalitarian regimes legislate in secret.. For generations citizens have been entitled to know the arguments used when legislators pass laws that citizens are expected to obey. They are entitled to the same standards when legislation is debated at a European level."
He argued that the Council was operating a blanket ban on the release of minutes and documents that might reveal disagreements among member states.
The court heard supporting arguments for the Guardian case from the European Parliament and the governments of Denmark and the Netherlands. Peter Biering for Denmark said:
"Access to documents of the legislative process is central to democratic control which has to be exercised by the electorate and press."
François Vainker, for the European Parliament, said:
"The Council has behaved unlawfully in failing to recognise the fundamental rights explained to you this morning." (A reference to Article F(2) of the Maastricht Treaty saying fundamental rights would be respected "as they result from constitutional traditions commons to member states")
Mr Vainker went to argue that in transferring powers from national parliaments to the Council governments were under an obligation not to dilute the openness of the legislative process typical in member states. Under the "first pillar" (economic and social affairs) the European Parliament using its powers of co-decision conducted its debates on precisely the same legislation as the Council in full public view. Ms Aussant argued that the Council could not be regarded as a traditional legislature because it simultaneously performs the role as an "organ of collective diplomacy".
Guardian 6.7.95; Irish Times, 6.7.95; see Statewatch, vol 3 no 6; vol 4 nos 1, 2, 3, 4 & 5; vol 5 no 2.