FREEDOM OF INFORMATION: SWEDISH JOURNALISTS UNION WINS CASE AT EUROPEAN COURT OF JUSTICE
The European Court of Justice (ECJ) has annulled a EU Council decision, of June 1995, refusing the disclosure of Council documents on Europol to Journalisten, the newspaper of the Swedish Journalists Union. The judgement has been welcomed as a victory by supporters of transparency throughout Europe, but it remains to be seen whether it will effect a real change for the better in prevailing Council practice concerning public access to information.
The conflict between Journalisten and the Council began in 1995. Sweden had just joined the EU and the newspaper of the Swedish Journalists Union decided to test EU policies and practice regarding freedom of information as compared with the very liberal Swedish law and practice in the field.
Between February and May 1995, Journalisten applied to the Swedish Government for the disclosure, in accordance with Swedish freedom of information legislation, of a set of 20 JHA Council documents, all concerning Europol.
An application concerning the same 20 documents was made in May 1995 to the EU Council.
The result of the test was striking: the Swedish Government eventually released 18 of the requested 20 documents, with some sections revealing negotiating positions of other EU member states blanked out.
Council refuses disclosure on "public security" grounds
For its part, the Council decided, after waiting one month, to disclose just two of the 20 requested documents. In response to a second, confirmatory application, the Council (via COREPER) released a further two documents in July 1995 but refused to disclose the remaining 16 on the summary grounds that disclosure would interfere with "public security" interests and/or that they revealed member states' positions in ongoing negotiations, which positions had to remain confidential.
Complaint to the ECJ
In August 1995, Journalisten appealed against this decision to the ECJ (Court of First Instance).
The governments of Denmark, the Netherlands and - to a lesser extent - Sweden - supported the complainant, while Britain and France, the two foremost champions of secrecy of government, backed the Council.
In December 1995, the Council submitted his statement of defence to the ECJ which focussed on challenging the admissibility of Journalisten's case on a number on formal-technical grounds. The British and the French governments challenged the right of the ECJ to even consider public access to documents concerning police cooperation, i.e intergovernmental cooperation under the Third Pillar (Justice and Home Affairs Cooperation) of the Maastricht Treaty on European Union (TEU).
This line of argumentation was easily refuted by the Dutch lawyer of Journalisten, Onno W. Browers. He pointed to the fact that the Council itself implicitly acknowledges that the Code of Conduct (on public access to Council documents) is also applicable to the Third Pillar: "If one claims that the ECJ does not have the right to consider this [disclosure of Third Pillar documents], this would imply that, if you turn it the other way round, the Council or the Commission could not either address the Court. If that was so, tomorrow we could distribute all Third Pillar documents we have got in the Netherlands and none of them could challenge this".
The judgement
The ECJ delivered its judgement almost three years after the complaint was brought, on 17 June 1998. The judgement amounted to a brush-off for the Council. The Court annulled the Council decisions denying Journalisten access to the documents on the grounds that the Council had not specified in a sufficient manner why the disclosure of the documents would be harmful to "public security". More generally, the Court held that the rule stated by the 1993 Code of Conduct (on public access) require the widest possible access of citizens to information. This rule may be departed from only in exceptional cases. Furthermore, the Court found that applicants do not have to give reasons for requesting disclosure.
The judgement also comprises a necessary reminder as regards the meaning of the somewhat elastic term "public security". According to the Court, it covers internal and external security, the interruption of essential services and action of authorities aimed at crime prevention. Accordingly, the Court found there was no evidence that any of the 20 documents in question contained information the disclosure of which would be harmful to "public security", since none of them contained information on specific operational activities of EDU/Europol.
Major obstacles to public access to Council documents remain
While the judgement is important in that it confirms the very principle of public access to Council documents, the case of Journalisten vs Council also highlights a number of crucial legal and practical obstacles to openness.
To begin with, three and a half years after the application for disclosure was filed, Journalisten has still not received copies of the 16 documents requested from the Council. Commenting on the judgement, the vice president of PEN International, Thomas von Vegesack, noted very accurately that the ECJ had failed to pronounce itself on "the crucial question of whether the documents concerned should have been disclosed or not. It limits itself to stating that the decided refusal of disclosure was not sufficiently substantiated". Consequently, in order to comply with the judgement, the Council will merely have to make a new decision. Theoretically, this could end up in a new denial of access, based on new grounds.
In practice, this is of purely academic interest. The documents in question were about policy and law making. They all concerned the then ongoing proceedings and negotiations in connection with defining the future competencies of Europol and drafting the Convention. In early 1995, their disclosure to the public would have enabled a timely democratic debate on the future role to be conferred upon the European Police Bureau. Such a debate could have resulted in a more accountable and more transparent Europol. In practice, the documents had become obsolete and irrelevant already in June 1995, when the governments of the member states reached political agreement on the Europol Convention at the EU Summit of Cannes (see FECL No.35: "Cannes Summit on Europol: Confusion and deception"). In other words, the disclosure of the documents would have benefited transparency and strengthened democratic participation only if they had been made accessible to the public without delay. The disclosure of documents about decisions in the making post eventum, i.e. when the decisions are made, has nothing to do with open government.
Other aspects of the Journalisten case deserve to be highlighted. To begin with, it is quite remarkable that not even the ECJ was given access to all documents at the origin of the lawsuit. The reason given by the Council was that, if the documents became part of the records in the procedure, Journalisten would also be able to read them...
Consequently, the findings of the Court were based solely on Council notes summarising the contents of each refused document. It is hard to understand how the ECJ could be able to consider the legitimacy of a refusal of access without having seen the document concerned.
In pursuing its case, Journalisten had to overcome a multitude of practical obstacles that are likely to deter average citizens from exercising their rights of access to information. To begin with, Journalisten spent a lot of time in getting a remarkably uncooperative Council bureaucracy to make a decision on its application. When the newspaper decided to file a complaint against the Council with the ECJ, it discovered that, as opposed to e.g. procedures before the European Commission and Court of Human Rights, the parties are not allowed to plead their cause themselves, but must be represented by a barrister specially admitted to the ECJ. Since Community law does not provide for any legal aid to the complainant, Journalisten had to pay its barrister and would have been liable to pay the costs of the entire procedure in the event of a lost lawsuit. Consequently, the newspaper could not have pursued its case before the Court without launching a fundraising campaign. Obviously, no average citizen would be able to overcome such economic barriers.
Sources: Journalisten, 18.6.-19.8.98, Special issue on the ECJ judgement, 20.7.98; Judgement of the Court of First Instance (ECJ), 17.6.98, Case T-174/95, Svenska Journalistförbundet; [see also: FECL No.41: "Swedish journalists challenge EU Council on secrecy"](/artikel/4102/)).