FECL 38 (October 1995):


The European Court of Justice in Luxembourg (ECJ) has upheld the claim of the British newspaper, The Guardian, that it was unlawfully denied the minutes of ministers' "private" debates at EU Council meetings. In their decision of 19 October, the judges found that the Council was guilty of operating a systematic ban on the disclosure of documents which might reveal the position of individual member states in debates. The Council's decision to withhold minutes from The Guardian was annulled. Unfortunately, the Court refrained from examining The Guardian's more far-reaching claim that EU citizens have a fundamental right to know what happens when EU laws are made.


The story began in February 1993, when John Carvel, the Brussels correspondent of the Guardian, put in an application under the Council's "code of conduct" (on public access to Council documents) asking for three sets of minutes from Social Affairs, Agriculture and Justice and Home Affairs (JHA) Council meetings (see FECL No.24: "The EU's code on public access to information: Transparency they say, secrecy they mean").

The Council librarian sent some of the required documents to Mr Carvel, but withheld others, among them the JHA documents on the grounds of the necessary protection of "the institution's interests in the confidentiality of the proceedings". Mr Carvel's appeal against this ruling was rejected in May 1994 (a month after the deadline for reply) by the EU foreign ministers). Moreover, the ministers informed Mr Carvel that he should actually have been denied all the required documents and that he had been handed out some material only due to an "administrative error owing the novelty of the procedure for allowing public access".

The Council's justification for refusing access to the documents was a catch-all clause in the "code of conduct" which allowed it to withhold anything on the mere grounds of maintaining confidentiality. The Council gave no reason for withholding the particular documents required by Mr Carvel. Consequently, Mr Carvel filed a complaint at the ECJ. His case was supported by The Guardian, the European Parliament, and the two EU member states most in favour of public access, Holland and Denmark (see FECL No. 28: "Danish battle for transparency of EU decision-making").


Council lied on blanket ban?

In the meantime, the Council, in a hasty effort to put an end to journalists' disturbing inquisitiveness, laid down a blanket ban on the disclosure of any minutes which might reveal national points of view. The Guardian learned this from a leaked memo written by the Council's own legal service, but the document could not be used in court without the Council's permission.

When the case came up for an oral hearing in July, the Council's lawyers assured the judges that it never operated a blanket ban, but the Danes and the Dutch said this was untrue.

Some weeks ago, the Council finally agreed a Danish proposal which ought to open up the minutes of future law-making sessions of the Council and the ECJ's decision states that the Council cannot hide behind rules of procedure which give priority to confidentiality over citizens' right of access.


A battle is won, but not the war

The ECJ found that the illegality of the ban on disclosing minutes was so clear-cut that it did not have to examine The Guardian's more far-reaching arguments referring to EU citizens' fundamental right to be fully informed on law-making in the EU.

Indeed, this is what the Guardian case is actually about. In a comment on the ECJ verdict, John Carvel explains his reasons for bringing the case to the court: "When I was posted to Brussels three years ago, I soon came to the conclusion that this Council operated under rules which were alien to European democratic traditions. While preaching the virtues of transparency, it legislated behind closed doors". In the EU, the real legislative power lies with the ministers of the member state, i.e. the Council, Carvel points out. "To that extent the Council has operated like a parliament, but - unlike all the parliaments of Europe - the legislative stages of its deliberations were confidential and without a verbatim transcript. Even the highly condensed minutes of decisions were classified." As a consequence, "the people could never hold their representatives accountable".

"For our part, we are content that we have nudged the debate in the right direction and have established the first chapter of EU law on freedom of information", John Carvel concludes. " We have established the legal floor, but we are still a long way from the ceiling.


Source: The Guardian, 20.10.95.