European Union: Guardian secrecy case (1)
01 January 1991
European Union: Guardian secrecy case
artdoc July=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-à-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 -