European Union: Guardian secrecy case
01 May 1994
The Guardian newspaper filed an application at the European Court of Justice in Luxembourg on 20 May accusing the governments of the European Union of violating fundamental principles of EU law by refusing to disclose documents from the Council of Ministers - the most secretive legislature in Western democracies (see Statewatch, vol 3 no 6; vol 4 nos 1 & 2).
The case arose when the Council (the permanent body representing the 12 EU governments) refused to provide background documents on the meeting of the Council of Justice and Interior Ministers in line with its commitment to provide "the widest possible access to documents". The Council did provide a set of background reports on a meeting of the Council of Social Affairs but later told Guardian journalist John Carvel that the material sent:
"should not have been sent to you. However, owing to the novelty of the procedure for allowing public access to documents of the Council and its practical implementation, this information was sent to you because of an administrative error."
The case lodged by the Guardian says the Council has misused its discretionary powers, shows a lack of reasoning and fails to balance the interests of confidentiality against the legitimate expectations of public access raised by the "code" it had adopted. It goes on to say:
"The legal order of the European Union has no chance whatsoever to develop further (or even survive) without the active participation of the citizens of the union. What commitment can ever be asked from citizens vis--vis a legal order which is governed in secrecy and without effective democratic control?"
The newspaper's application has been presented to the lower-tier Court of First Instance in Luxembourg whose ambit was increased last year to cover complaints by citizens against the abuse of power by EU institutions. Although the case will take some time to be heard the Council is obliged to submit a defence of its actions within the next two months.
The case is being supported by the Netherlands government. In a statement to the General Affairs Council its delegation said:
"Netherlands voted against the code of conduct and the Council decision on 6 December 1993. The Netherlands has brought proceedings before the Court of Justice for the annulment of the decisions (Case c-58/94)... The criteria of confidentiality against the citizens right to obtain information [should be weighed] should such a weighing-up of interests in fact have taken place, the applicant ought to have been informed of this in a reasoned manner."
The basic objection of the Council to providing information is simply stated in its own words, information on its work (reports, minutes, background documents) have to be withheld "to protect the institution's interest in the confidentiality of its proceedings".
A democratic EU?
The outcome of this case has implications for the role of the European Parliament. Article K (or Title VI third pillar ) of the Treaty of European Union (TEU), covers policing, immigration and judicial cooperation. Article K.6 says that the President of the Council and the Commission "shall regularly inform he European Parliament of discussions in the areas covered by this Title". It goes on to say that the parliament has to be consulted on "the principal aspects of activities" and that its views will be "duly taken into consideration", and further that it can question the Council on these areas and make recommendations.
When the Treaty of Union into effect on 1 November 1993 the Council put Article K into effect immediately - the K4 Committee held its first meeting on 3 November - yet eight months later there is no process in place for effecting the relationship with the European Parliament set out above. The inter-institutional committee - involving the Council, Commission and Parliament -has left this job to the new parliament to effect in the autumn.
Last July the EP took a report from the Civil<