FECL 41 (February 1996):
In Spring 1995, Christoph Andersson, a journalist at Journalisten, applied for copies of a set of 20 EU documents related to Europol at the Swedish Department of Justice. Referring to Swedish secrecy regulations, the Department denied him only two documents and deleted certain passages in some of the 18 documents handed out.
Andersson than applied for the same set of 20 documents at the EU Council - with a somewhat disappointing result. After some waiting, Andersson was sent no more than two of the requested documents. On 8 June, Journalisten sent a letter of protest to the Council and asked its Secretary General to reconsider the application in compliance with the Council's "Code of Conduct" (on public access to Council documents). Almost a month later, the COREPER (The Council's Permanent Committee of Representatives), "after a brief discussion", recommended that the Council disclose an additional two documents. After some more time, 10 Council members approved the wording of the COREPER's proposal, while five (Denmark, Finland, Ireland, The Netherlands and Sweden) abstained from voting. In other words, no member state opposed the decision.
Journalisten responded by filing an appeal to the ECJ.
The Council replied with a statement of defence prepared by its Legal Service. In the statement, the Council's legal experts not only argue against Journalisten's claim to the Europol documents but also against the Council's own "Code of Conduct": "The Council considers that the existence of decision 93/731/EC [Code of Conduct] cannot give rise to legitimate expectations with regard to a particular result...", the statement holds, and it argues that the Code of Conduct provides for no more than a "fair examination" of applications.
The Council also brushes aside its own decisions on improved public access to information at its Summits in Edinburgh, Birmingham, Maastricht (1992) and Copenhagen (1993) pertaining to transparency and public access to information: "Neither the [above] decisions and the Code of Conduct, nor political statements constitute a ground for legitimate expectations of individuals as to a right to receive Council documents whose disclosure may be requested with reference to the mentioned decisions", the Council argues.
The Council objects to the disclosure of the documents requested by Andersson on "public security" grounds. This is all the more amazing considering their content. Some of the documents withheld are:
A footnote of the Council's Statement of Defence says: "The Council wishes to emphasise that (...) Swedish authorities have accepted, considered and replied to a request [by Journalisten] for insight into the same documents, several months before the question was raised by the Council". And the Statement unequivocally blames both the Swedish government and Journalisten of breaching Community law: "In the opinion of the Council, the documents concerned passed into public hands as a result of an act that conflicts with Community law which prohibits the applicant [Journalisten] from pursuing this case. (...). In this context we must recall that the Community is based on law and that this is a fundamental principle for the legal order of the Community".
"The applicant [Journalisten] admits that the documents in question were obtained from Swedish authorities. This was a violation of the laws of the Community, since no decision had been taken or even sought for within the Council for authorising such public disclosure".
In short, the Council demands that journalists be prevented from legally seeking and obtaining the disclosure of Council documents from their own governments under national law. Should this view be accepted by the ECJ, this would amount to a devastating blow to the Nordic practice of open government (see FECL No.15: "EC-POLICY ON PRIVACY AND SECRECY THREATENS NORDIC TRADITION OF FREEDOM OF INFORMATION").
"Only the Council - made of representatives of each member state - is in a position to determine in how far the disclosure of a particular document might jeopardise public interest (security)", the Council's legal experts contend, and they warn the ECJ against drawing any own conclusions on whether the content of the documents disclosed by Sweden still constitutes a security risk or not. Only the Council itself can decide "from case to case" whether and for how long a specific document must be considered sensitive, the statement says.
After some reluctance on the part of the Swedish government, Sweden and Denmark decided at the end of January to support the case of Journalisten.
In both countries, the pro-EU political establishment has vowed to its EU-sceptical people that the Nordic principle of open government would not be restricted by EU membership. Instead, the Nordic countries would "export" their tradition of transparency and freedom of information to the rest of the Union.
The big question is, whether the Nordic countries will not rather "import" secret government from the EU.
Whatever its outcome, the Journalisten case is likely to have far-reaching consequences both for the Community and the Nordic countries.
Sources: Journalisten No.2 (18.1.96), No.4 (1.2.96), No.5 (8.1.96); Det ny Notat, No.783, 26.1.96; Svenska Dagbladet, 27.1.96. The quotations from the Council's Statement of Defence are taken from Journalisten and are our translations from Swedish.