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1 Procedure - Time-limits - Community rules - Need for
strict application - Extension on account of distance of time-limits
for Sweden
(Rules of Procedure of the Court of Justice, Annex II, Art. 1)
2 Actions for annulment - Interest in bringing proceedings -
Applicant challenging a decision refusing to grant it access
to an institution's documents
(EC Treaty, Art. 173, fourth para.; Council Decision 93/731)
3 Procedure - Intervention - Objection as to admissibility not
raised by the defendant - Inadmissibility - Absolute bar to proceeding
- Examination by the Court of its own motion
(EC Statute of the Court of Justice, Arts 37, third para., and
46; Rules of Procedure of the Court of First Instance, Art. 113)
4 Actions for annulment - Jurisdiction of the Community judicature
- Decision refusing to grant public access to documents covered
by Title VI of the Treaty on European Union
(EC Treaty, Art. 173, fourth para.; Treaty on European Union,
Arts K to K.9 and L; Council Decision 93/731)
5 Acts of the institutions - Statement of reasons - Obligation
- Scope - Decision refusing public access to an institution's
documents
(EC Treaty, Art. 190; Council Decision 93/731, Art. 4)
6 Procedure - Procedure before the Court of First Instance -
Protection for parties against misuse of pleadings and evidence
- General principle in the due administration of justice - Scope
(Rules of Procedure of the Court of First Instance, Art. 116(2);
Instructions to the Registrar of the Court of First Instance,
Art. 5(3))
1 The Community rules governing procedural time-limits
must be strictly observed both in the interest of legal certainty
and in order to avoid any discrimination or arbitrary treatment
in the administration of justice. Accordingly, while Article
1 of Annex II to the Rules of Procedure of the Court of Justice
provided for a 10-day extension on account of distance for certain
designated countries, of which Sweden was not one, the extension
on account of distance applicable to that Member State could
only be the two weeks applicable to all other European countries
and territories.
2 A person who is refused access by the Council to a Council
document has, by virtue of that very fact, established an interest
in the annulment of the decision refusing him such access.
The objective of Decision 93/731 on public access to Council
documents is to give effect to the principle of the largest possible
access for citizens to information with a view to strengthening
the democratic character of the institutions and the trust of
the public in the administration. It does not require that members
of the public must put forward reasons for seeking access to
requested documents. The fact that the requested documents were
already in the public domain is irrelevant in this connection.
3 Under the final paragraph of Article 37 of the EC Statute of
the Court of Justice, applicable to the Court of First Instance
by virtue of Article 46 thereof, an application to intervene
is to be limited to supporting the form of order sought by one
of the parties. An intervener is not therefore entitled to raise
an objection as to admissibility that was not raised in its written
pleadings and the Court is not therefore obliged to consider
the submissions it has made in that regard.
However, under Article 113 of the Rules of Procedure, the Court
of First Instance may at any time, of its own motion, consider
whether there exists any absolute bar to proceeding with a case,
including any raised by interveners.
4 The Court of First Instance has jurisdiction to entertain an
action for the annulment of a Council decision refusing the applicant
access to documents, even if those documents were adopted on
the basis of the provisions of Title VI of the Treaty on European
Union concerning cooperation in the fields of justice and home
affairs.
First, Articles 1(2) and 2(2) of Decision 93/731 on public access
to Council documents expressly provide that the Decision is to
apply to all Council documents; it therefore applies irrespective
of the contents of the documents requested. Secondly, since,
pursuant to Article K.8(1) of the EU Treaty, measures adopted
pursuant to Article 151(3) of the EC Treaty, which is the legal
basis for Decision 93/731, are applicable to measures within
the scope of Title VI of the EU Treaty, in the absence of any
provision to the contrary, Decision 93/731 applies to documents
relating to Title VI and the fact that the Court has, by virtue
of Article L of the EU Treaty, no jurisdiction to review the
legality of measures adopted under Title VI does not curtail
its jurisdiction in the matter of public access to those measures.
5 The duty, pursuant to Article 190 of the Treaty, to state reasons
in individual decisions has the double purpose of permitting,
on the one hand, interested parties to know the reasons for the
adoption of the measure so that they can protect their own interests
and, on the other hand, enabling the Community court to exercise
its jurisdiction to review the validity of the decision. In the
case of a Council decision refusing to grant public access to
documents, the statement of reasons must therefore contain -
at least for each category of documents concerned - the particular
reasons for which the Council considers that disclosure of the
requested documents comes within the scope of one of the exceptions
provided for in Article 4(1) and (2) of Decision 93/731 relating,
first, to the protection of the public interest, and secondly,
to the confidentiality of the Council's proceedings.
A decision refusing the applicant access to a number of Council
documents that indicates only that disclosure of the documents
in question would prejudice the protection of the public interest
(public security) and that the documents relate to proceedings
of the Council, including the views expressed by members of the
Council, and for that reason fall within the scope of the duty
of confidentiality, does not satisfy the above requirements and
must therefore be annulled.
First, in the absence of any explanation as to why the disclosure
of those documents would in fact be liable to prejudice a particular
aspect of public security, it is not possible for the applicant
to know the reasons for the adoption of the measures and therefore
to defend its interests. It follows that it is also impossible
for the Court to assess why the documents to which access was
refused fall within the exception based upon the protection of
the public interest (public security) and not within the exception
based upon the protection of the confidentiality of the Council's
proceedings. Secondly, as regards the latter exception, the terms
of the decision do not permit the applicant or, therefore, the
Court to check whether the Council has complied with its duty,
under Article 4(2) of Decision 93/731, to make a comparative
analysis which seeks to balance, on the one hand, the interest
of the citizens seeking the information and, on the other hand,
the confidentiality of the proceedings of the Council.
6 The rules which govern procedure in cases before the Court
of First Instance, including the third subparagraph of Article
5(3) of the Instructions to the Registrar and Article 116(2)
of the Rules of Procedure, under which parties are entitled to
protection against the misuse of pleadings and evidence, reflect
a general principle in the due administration of justice according
to which parties have the right to defend their interests free
from all external influences and particularly from influences
on the part of members of the public.
It follows that a party who is granted access to the procedural
documents of other parties is entitled to use those documents
only for the purpose of pursuing his own case and for no other
purpose, including that of inciting criticism on the part of
the public in relation to arguments raised by other parties in
the case.
In Case T-174/95,
Svenska Journalistförbundet, an association governed by
Swedish law, established in Stockholm, represented by Onno W.
Brouwer, of the Amsterdam Bar, and Frédéric P.
Louis, of the Brussels Bar, assisted by Deirdre Curtin, Professor
at the University of Utrecht, with an address for service in
Luxembourg at the Chambers of Loesch and Wolter, 11 Rue Goethe,
applicant,
supported by
Kingdom of Sweden, represented by Lotty Nordling, Director-General
of the Legal Service of the Ministry of Foreign Affairs, acting
as Agent,
Kingdom of Denmark, represented by Peter Biering, Head of Department
in the Ministry of Foreign Affairs, and Laurids Mikælsen,
Ambassador, acting as Agents, with an address for service in
Luxembourg at the Danish Embassy, 4 Boulevard Royal,
and
Kingdom of the Netherlands, represented by Marc Fierstra and
Johannes Steven van den Oosterkamp, Legal Advisers, acting as
Agents, with an address for service in Luxembourg at the Embassy
of the Netherlands, 5 Rue C.M. Spoo,
interveners,
v
Council of the European Union, represented by Giorgio Maganza
and Diego Canga Fano, Legal Advisers, acting as Agents, with
an address for service in Luxembourg at the office of Alessandro
Morbilli, Manager of the Legal Affairs Directorate of the European
Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,
supported by
French Republic, represented by Catherine de Salins, Assistant
Director in the Legal Department of the Ministry of Foreign Affairs,
and Denys Wibaux, Secretary for Foreign Affairs in the same Ministry,
acting as Agents, with an address for service in Luxembourg at
the French Embassy, 8B Boulevard Joseph II,
and
United Kingdom of Great Britain and Northern Ireland, represented
by John Collins, of the Treasury Solicitor's Department, acting
as Agent, with an address for service in Luxembourg at the British
Embassy, 14 Boulevard Roosevelt,
interveners,
APPLICATION for the annulment of the Council's decision of 6
July 1995 refusing the applicant access to certain documents
concerning the European Police Office (Europol), requested under
Council Decision 93/731/EC of 20 December 1993 on public access
to Council documents (OJ 1993 L 340, p. 43),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Fourth Chamber, Extended Composition),
composed of: K. Lenaerts, President, P. Lindh, J. Azizi, J.D.
Cooke and M. Jaeger, Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 17 September 1997,
gives the following
Judgment
1 In the Final Act of the Treaty on European Union (`the EU
Treaty'), signed in Maastricht on 7 February 1992, the Member
States incorporated a Declaration (No 17) on the right of access
to information, in the following terms:
`The Conference considers that transparency of the decision-making
process strengthens the democratic nature of the institutions
and the public's confidence in the administration. The Conference
accordingly recommends that the Commission submit to the Council
no later than 1993 a report on measures designed to improve public
access to the information available to the institutions.'
2 On 8 June 1993 the Commission published Communication 93/C
156/05 on public access to the institutions' documents (OJ 1993
C 156, p. 5), which had been submitted to the Council, the Parliament
and the Economic and Social Committee on 5 May 1993. On 17 June
1993 it published Communication 93/C 166/04 on openness in the
Community (OJ 1993 C 166, p. 4), which had also been submitted
to the Council, the Parliament and the Economic and Social Committee
on 2 June 1993.
3 On 6 December 1993 the Council and the Commission approved
a Code of Conduct concerning public access to Council and Commission
documents (OJ 1993 L 340, p. 41, hereinafter the `Code of Conduct'),
and each undertook to take steps to implement the principles
thereby laid down before 1 January 1994.
4 In order to put that undertaking into effect, the Council adopted
on 20 December 1993 Decision 93/731/EC on public access to Council
documents (OJ 1993 L 340, p. 43, hereinafter `Decision 93/731'),
the aim of which was to implement the principles established
by the Code of Conduct. It adopted that decision on the basis
of Article 151(3) of the EC Treaty, which states that `[t]he
Council shall adopt its Rules of Procedure'.
5 Article 1 of Decision 93/731 provides:
`1. The public shall have access to Council documents under the
conditions laid down in this Decision.
2. "Council document" means any written text, whatever
its medium, containing existing data and held by the Council,
subject to Article 2(2).'
6 Article 2(2) provides that applications for documents the author
of which is not the Council must be sent directly to the author.
7 Article 4(1) of Decision 93/731 provides:
`Access to a Council document shall not be granted where its
disclosure could undermine:
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural
or legal person who supplied any of the information contained
in the document or as required by the legislation of the Member
State which supplied any of that information.'
8 Article 4(2) adds that `[a]ccess to a Council document may
be refused in order to protect the confidentiality of the Council's
proceedings.'
9 Articles 2(1), 3, 5 and 6 of Decision 93/731 set out in particular
the procedure for submitting applications for access to documents
and the procedure to be followed by the Council when replying
to such applications.
10 Article 7 provides:
`1. The applicant shall be informed in writing within a month
by the relevant departments of the General Secretariat either
that his application has been approved or that the intention
is to reject it. In the latter case, the applicant shall also
be informed of the reasons for this intention and that he has
one month to make a confirmatory application for that position
to be reconsidered, failing which he will be deemed to have withdrawn
his original application.
2. Failure to reply to an application within a month of submission
shall be equivalent to a refusal, except where the applicant
makes a confirmatory application, as referred to above, within
the following month.
3. Any decision to reject a confirmatory application, which shall
be taken within a month of submission of such application, shall
state the grounds on which it is based. The applicant shall be
notified of the decision in writing as soon as possible and at
the same time informed of the content of Articles 138e and 173
of the Treaty establishing the European Community, relating respectively
to the conditions for referral to the Ombudsman by natural persons
and review by the Court of Justice of the legality of Council
acts.
4. Failure to reply within a month of submission of the confirmatory
application shall be equivalent to a refusal.'
The facts
11 Following Sweden's accession to the European Union on 1 January
1995, the applicant decided to test the way in which the Swedish
authorities applied Swedish citizens' right of access to information
in respect of documents relating to European Union activities.
For that purpose it contacted 46 Swedish authorities, among whom
were the Swedish Ministry of Justice and the national Police
Authority (Rikspolisstyrelsen), seeking access to a number of
Council documents relating to the setting up of the European
Police Office (hereinafter `Europol'), including eight documents
held by the national Police Authority and 12 held by the Ministry
of Justice. In response to its requests the applicant was granted
access to 18 of the 20 documents requested. It was refused access
by the Ministry of Justice to two documents on the ground that
they concerned the negotiating positions of the Netherlands and
German Governments. Furthermore, certain passages in the documents
to which access was granted had been deleted. In some documents
it was difficult to ascertain whether passages had been deleted
or not.
12 On 2 May 1995 the applicant also applied to the Council for
access to the same 20 documents.
13 By letter dated 1 June 1995, the Council's General Secretariat
allowed access to two documents only, those being documents which
contained communications by the future French Presidency of its
priorities in the field of asylum and immigration and in the
field of justice. Access to the other 18 documents was refused
on the ground that `documents 1 to 15 and 18 to 20 are subject
to the principle of confidentiality as laid down in Article 4(1)
of Decision 93/731'.
14 On 8 June 1995 the applicant submitted a confirmatory application
to the Council in order to obtain reexamination of the decision
refusing access.
15 The competent department of the Council's General Secretariat,
together with the Council's Legal Service, then prepared a note
for the attention of the Information Working Party of the Permanent
Representatives' Committee (hereinafter `Coreper') and the Council.
A draft reply, together with the exchange of correspondence that
had taken place previously between the applicant and the General
Secretariat, was distributed with a note dated 15 May 1995 prepared
by Mr Elsen, Director-General of the Council's Justice and Home
Affairs Directorate (DG H), when the first application was being
examined (hereinafter `Mr Elsen's note'). That note provided
a brief summary of the contents of the documents and a preliminary
assessment as to whether they could be released. It was communicated
to the applicant for the first time in the course of the present
proceedings as an annex to the Council's defence. On 3 July 1995
the Information Working Party decided to release two other documents
but to refuse access to the remaining 16. At a meeting on 5 July
1995 Coreper approved the terms of the draft reply proposed by
the Working Party.
16 The Council points out that all the documents concerned were
at the disposal of the members of the Council and that copies
of the documents were also available for examination at the Information
Working Party meeting of 3 July.
17 After the Coreper meeting, the Council replied to the confirmatory
application by a letter dated 6 July 1995 (hereinafter `the contested
decision'), in which it agreed to grant access to two other documents
but rejected the application for the remaining 16 documents.
18 It explained that:
`[i]n the Council's opinion access to those documents cannot
be granted because their release could be harmful to the public
interest (public security) and because they relate to the Council's
proceedings, including the positions taken by the members of
the Council, and are therefore covered by the duty of confidentiality.
Lastly, I would like to draw your attention to the provisions
of Articles 138e and 173 of the EC Treaty concerning, respectively,
the conditions governing the lodging of a complaint with the
Ombudsman and the institution of proceedings before the Court
of Justice by a natural person against acts of the Council.'
Procedure
19 By application lodged at the Registry of the Court of First
Instance on 22 September 1995 the applicant instituted this action.
20 By a letter lodged on 9 February 1996, the European Parliament
sought leave to intervene in the case in support of the applicant.
It subsequently withdrew its intervention.
21 By order of the President of the Fourth Chamber of the Court
of First Instance of 23 April 1996, the Kingdom of Denmark, the
Kingdom of the Netherlands and the Kingdom of Sweden were granted
leave to intervene in support of the applicant, and the French
Republic and the United Kingdom of Great Britain and Northern
Ireland were granted leave to intervene in support of the defendant.
22 By letter received on 3 April 1996 the Council drew the attention
of the Court of First Instance to the fact that certain material
documents, including the Council's defence, had been published
on the Internet. The Council considered that the applicant's
conduct was prejudicial to the proper course of the procedure.
It requested the Court to take appropriate measures in order
to avoid further such action on the part of the applicant.
23 The Court decided to treat this incident as a preliminary
issue within the meaning of Article 114(1) of the Rules of Procedure,
and accordingly invited the parties to submit observations on
the matter. The written procedure was suspended in the meantime.
Observations were received from the applicant and from the Danish,
French, Netherlands, Swedish and United Kingdom Governments.
24 In the light of those observations the Court decided that
the proceedings would be resumed, without prejudice to the consequences
it would attach to that preliminary issue (see below, paragraphs
135 to 139).
25 By decision of 4 June 1996, the Court referred the case to
the Fourth Chamber, Extended Composition. It did not accede to
a request by the Council of 20 June 1996 that the case be referred
to the Court sitting in plenary session.
26 The written procedure was concluded on 7 April 1997.
Forms of order sought by the parties
27 The applicant, supported by the Kingdom of Denmark and the
Kingdom of the Netherlands, requests the Court to:
- annul the contested decision;
- order the Council to pay the costs.
28 The Kingdom of Sweden requests the Court to annul the contested
decision.
29 The Council requests the Court to:
- declare the application inadmissible in its entirety;
- alternatively, declare the application inadmissible in so far
as it relates to documents which have already been received by
the applicant and do not contain deleted passages;
- in the further alternative, reject it as unfounded;
- order the applicant to pay the costs.
30 The French Republic requests the Court to:
- dismiss the application;
- order the applicant to pay the costs.
31 The United Kingdom requests the Court to dismiss the application
as inadmissible or, in the alternative, as unfounded.
Admissibility
32 The Council claims that the application is inadmissible on
several grounds, relating to the identity of the applicant, non-compliance
with the time-limit for bringing an action, the applicant's lack
of interest in bringing the action and the Court's lack of jurisdiction.
Each of those grounds will be examined in turn.
The identity of the applicant
33 Svenska Journalistförbundet is the Swedish Journalists'
Union. It owns and publishes a newspaper entitled Tidningen Journalisten.
The application is headed `Svenska Journalistförbundets
tidning' and `Tidningen Journalisten'. The application states
that the applicant is the magazine of the Swedish Journalists'
Union, but the link between the two entities is not clearly explained.
During the written procedure Tidningen Journalisten was therefore
designated as `the applicant'.
Arguments of the parties
34 In reply to a written question from the Court, the applicant's
lawyers indicated by fax message of 4 August 1997 that the application
should be regarded as having been lodged by the Swedish Journalists'
Union as the proprietor of the magazine, since it alone of the
two entities had capacity to sue under Swedish law.
35 At the hearing they added that any distinction between the
Swedish Journalists' Union and Tidningen Journalisten was artificial.
The application and confirmatory application sent to the Council
had been presented on headed paper of Svenska Journalistförbundet
and Tidningen Journalisten and the Council replied to Svenska
Journalistförbundets Tidning. Svenska Journalistförbundet
was thus a party to the case from the outset.
36 The Netherlands Government considers that it would be too
formalistic to consider that an action instituted by an independent
division of a legal person could not be attributed to that legal
person, given that it is now clear that adequate proof of authority
was produced when the action was instituted and the interests
of the parties to the proceedings have not been injured in any
way.
37 In a letter of 9 September 1997, the Council contends that
in the light of the replies of the applicant's lawyers Tidningen
Journalisten, which it had regarded as the applicant in the case,
had no capacity to sue under Swedish law.
38 It further contends that even if the Swedish Journalists'
Union could be substituted for Tidningen Journalisten, the former
could not be regarded as the addressee of the Council's reply
of 6 July 1995, nor as directly and individually concerned by
that decision.
39 It therefore asks the Court to dismiss the application as
inadmissible.
Findings of the Court
40 The first page of the application refers to both Tidningen
Journalisten and `Svenska Journalistförbundets tidning'.
41 The proof of authority granted to the applicant's lawyers
as required by Article 44(5)(b) of the Rules of Procedure was
signed on behalf of the Swedish Journalists' Union by Lennart
Lund, Editor in Chief of the magazine Tidningen Journalisten.
In that regard, the applicant has lodged, as an annex to its
fax message of 4 August 1997 (see paragraph 34 above), a certificate
confirming that the Swedish Journalists' Union had instructed
Lennart Lund to bring the present application before the Court.
42 In those circumstances it is clear that the application has,
in reality, been brought by the Swedish Journalists' Union as
proprietor of Tidningen Journalisten.
43 The Swedish Journalists' Union being a legal person entitled
to sue under Swedish law, the Council cannot object to the admissibility
of the application on this basis.
44 Moreover, given that the Council had addressed the two negative
replies of 1 June 1995 and 6 July 1995 to `Mr Christoph Andersson,
Svenska Journalistförbundets tidning', it cannot at this
stage argue that the Swedish Journalists' Union was not the addressee
of the contested decision.
The time-limit for bringing the action
Arguments of the parties
45 The Council questions whether the action was brought within
the prescribed time-limit. It maintains that the applicant received
the contested decision on 10 July 1995. It then had two months
from that date to bring an action for its annulment.
46 The Council points out that Article 1 of Annex II to the Court's
Rules of Procedure, in the version then applicable, provided
that procedural time-limits were to be extended for parties not
habitually resident in the Grand Duchy of Luxembourg by the following:
- for the Kingdom of Belgium: two days,
- for the Federal Republic of Germany, the European territory
of the French Republic and the European territory of the Kingdom
of the Netherlands: six days,
- for the European territory of the Kingdom of Denmark, for the
Hellenic Republic, for Ireland, for the Italian Republic, for
the Kingdom of Spain, for the Portuguese Republic (with the exception
of the Azores and Madeira) and for the United Kingdom: 10 days,
- for other European countries and territories: two weeks.
47 The Council, supported by the French Government, doubts that
the rule applicable to non-Member States should also apply to
Member States of the European Union and considers that the applicant
should have brought its action in compliance with a time-limit
extended on account of distance by ten days, in order to avoid
any discrimination between applicants from countries that are
further away from Luxembourg than Sweden, which are entitled
only to a ten-day extension.
48 The applicant relies on the actual terms of Article 1 of Annex
II in the version reproduced above, and considers that they do
not support the Council's contention. There is no reference to
`Member States' or `non-Member States'. In the absence of any
specific extension for Sweden, that country was entitled to the
extension of two weeks applicable to all the European States
not specifically mentioned. The Council's argument concerning
discrimination does not carry conviction, since numerous places
in Belgium are further away from Luxembourg than certain places
in the Netherlands, yet all inhabitants of Belgium are entitled
to a two-day extension while all inhabitants of the Netherlands
are entitled to a six-day extension. Only the applicant's interpretation
satisfies the requirement of legal certainty.
49 The Swedish and Netherlands Governments support that interpretation.
At the hearing the Swedish Government's Agent pointed out that
it was formerly entitled to an extension of two weeks.
Findings of the Court
50 It is settled law that the Community rules governing procedural
time-limits must be strictly observed both in the interest of
legal certainty and in order to avoid any discrimination or arbitrary
treatment in the administration of justice (Case C-59/91 France
v Commission [1992] ECR I-525, paragraph 8).
51 The wording of Article 1 of Annex II to the Rules of Procedure,
in the version in force when the application was brought, does
not support the submission that the extension for distance applicable
in the case of Sweden was ten days and not two weeks. In fact,
the ten-day extension applied only to certain designated countries,
of which Sweden was not one. The extension of two weeks thus
applied to all European countries and territories for which a
shorter period was not laid down, including Sweden.
52 It follows that the action was commenced within time.
The applicant's interest in seeking annulment
Arguments of the parties
53 The Council also doubts that the application is admissible
inasmuch as it concerns documents that the applicant had already
received from the Swedish authorities, at least to the extent
that those documents do not contain deleted passages. The Council
was not informed that the purpose of the applicant's request
was to identify any passages in those documents which had been
deleted. The applicant's interest is general and political in
nature, its intention being to ensure that the Council gives
proper effect to its own Code of Conduct and Decision 93/731.
54 In the circumstances, although the Council is conscious of
the fact that the applicant is the addressee of the contested
decision, it questions whether the applicant is really affected
by that decision within the meaning of Article 173 of the EC
Treaty. That article does not allow individual actions in the
public interest, but only permits individuals to challenge acts
which concern them in a way in which they do not concern other
individuals.
55 In this case the applicant cannot derive any benefit from
obtaining access to documents which are already in its possession.
Its insufficient interest in the outcome of the proceedings constitutes
an abuse of procedure.
56 Supported by the French Government, the Council further contends
that the release of the documents in question by the Swedish
authorities to the applicant constitutes a breach of Community
law, since no decision had been taken to authorise such a disclosure.
It is contrary to the system of legal remedies provided for by
Community law to take advantage of a breach of Community law
and then to ask the Court to annul a decision whose effects have
been circumvented as a consequence of such a breach. The fact
that the documents in question were brought into the public domain
following an act contrary to Community law should therefore preclude
the applicant from bringing an action in this case.
57 The applicant replies that the Council is confusing the rules
on the admissibility of actions for the annulment of decisions
brought by their addressees with the rules on the admissibility
of actions for the annulment of regulations brought by certain
individuals. Addressees must show that they have an interest
in bringing their action but do not have to prove that they are
individually concerned.
58 In this case the applicant considers that it has a sufficient
interest in bringing the action and that that interest is neither
political nor general in nature. It points out that Tidningen
Journalisten publishes articles on specific subjects of general
interest and on the functioning of public authorities and other
matters concerning the way in which Swedish journalists can go
about their job. It therefore has a direct interest in gaining
access to Council documents and, if it is refused access for
reasons which demonstrate that the Council is misapplying the
relevant rules, in obtaining the annulment of the decision concerned
so as to ensure that the Council rectifies its approach in the
future. The fact that it has received documents from another
source does not therefore mean that it has no interest in bringing
the action.
59 In so far as the Council considers that the documents obtained
from the Swedish authorities without its prior authorisation
were obtained unlawfully, the applicant has a further ground
for the application to be held admissible even as regards documents
obtained in full from the Swedish authorities. Any use which
the applicant may make of those documents will otherwise be thrown
into doubt.
60 The applicant also rejects the Council's argument that the
insufficient interest the applicant has in the present proceedings
makes the application an abuse of procedure. It points out that
at the time when it requested access to the Council's documents
it had asked for and obtained from the national Police Authority
only 8 of the 20 documents in question. The other 12 documents
were requested from the Swedish Ministry of Justice on the same
day as it sent its request for the 20 documents to the Council.
Furthermore, many of the documents obtained appeared to have
deleted passages and the applicant could not, therefore, be sure
that it had received all the documents in full. The Council itself
has not indicated to the Court which documents contain deleted
passages, although it has asked the Court to declare the application
inadmissible to the extent that it concerns documents which the
applicant has obtained and which do not contain deleted passages.
The applicant is therefore not in a position to know which documents
do not contain any such passages.
61 The Swedish Government supports the applicant's arguments
as to admissibility. It does not share the Council's view that
the release of the documents in Sweden constituted a breach of
Community law. There is no implied Community rule based on a
common legal tradition whereby only the author of a document
may decide whether a document is to be released or not.
62 The Netherlands Government rejects the Council's argument
as regards the applicant's lack of interest in bringing proceedings.
It states that it was precisely in the public interest that Decision
93/731 was adopted. The applicant is not required therefore to
show a particular interest in order to be able to rely on it.
The application seeks to preserve the applicant's rights as the
addressee of the contested decision and is not an action in the
general interest. The applicant has an interest in seeking to
prevent the Council from applying a restrictive policy in regard
to requests by the applicant for access to documents in the future.
Moreover, the Council's allegation that the applicant is in possession
of documents in breach of Community law is sufficient to show
that the latter does have a legitimate interest. It goes without
saying that the interest recognised by Decision 93/731 relates
to legally obtained access to a document.
63 The United Kingdom Government contends that the application
is inadmissible because the applicant has no sufficient interest
in the outcome of the proceedings. The application is therefore
an abuse of procedure. None of the reasons given by the applicant
is sufficient to give rise to an interest in bringing proceedings
under Article 173 of the EC Treaty.
Findings of the Court
64 The applicant is the addressee of the contested decision and,
as such, is not obliged to prove that the decision is of direct
and individual concern to it. It need only prove that it has
an interest in the annulment of the decision.
65 In the case of Commission Decision 94/90/ECSC, EC, Euratom
of 8 February 1994 on public access to Commission documents (OJ
1994 L 46, p. 58, hereinafter `Decision 94/90'), the Court has
already held that from its overall scheme, it is clear that Decision
94/90 is intended to apply generally to requests for access to
documents, and that, by virtue of that decision, any person may
request access to any unpublished Commission document, and is
not required to give a reason for the request (Case T-124/96
Interporc v Commission [1998] ECR II-0000, paragraph 48).
66 The objective of Decision 93/731 is to give effect to the
principle of the largest possible access for citizens to information
with a view to strengthening the democratic character of the
institutions and the trust of the public in the administration.
Decision 93/731, like Decision 94/90, does not require that members
of the public must put forward reasons for seeking access to
requested documents.
67 It follows that a person who is refused access to a document
or to part of a document has, by virtue of that very fact, established
an interest in the annulment of the decision.
68 In this case the contested decision denied access to 16 of
the 20 documents requested. The applicant has therefore proved
an interest in the annulment of that decision.
69 The fact that the requested documents were already in the
public domain is irrelevant in this connection.
The jurisdiction of the Court
Arguments of the parties
70 The French Government states that the contested decision concerns
the arrangements for access to documents adopted on the basis
of Title VI of the EU Treaty. No provision of Title VI governs
the conditions of access to documents adopted on the basis of
its provisions. In the absence of an express provision, Decision
93/731, which was adopted on the basis of Article 151(3) of the
EC Treaty, is not applicable to acts adopted on the basis of
Title VI of the EU Treaty.
71 The United Kingdom Government contends that the jurisdiction
of the Court of First Instance does not extend to the matters
covered by Title VI of the EU Treaty, and therefore to the question
of access to the documents concerning those matters. Justice
and Home Affairs fall outside the scope of the EC Treaty and
are matters for inter-Governmental cooperation. It is clear from
Article E of the EU Treaty that in relation to Justice and Home
Affairs the institutions in question are to exercise their powers
under the conditions and for the purposes provided for by Title
VI of the EU Treaty. In exercising those powers they are acting
within the scope of Title VI, not of the EC Treaty. It follows
from Article L of the EU Treaty that the provisions of the EC
Treaty concerning the powers of the Court do not apply to Title
VI of the EU Treaty. Accordingly the jurisdiction of the Court
is excluded as much in procedural matters as in matters of substance.
In any event, it is frequently impossible to draw a clear-cut
distinction between the two.
72 The United Kingdom Government accepts that Decision 93/731
applies to Title VI documents, but considers that it does not
follow that the Court may exercise jurisdiction over a refusal
to allow access to such documents. In particular, the Court does
not acquire jurisdiction simply because Decision 93/731 was adopted
pursuant to Article 151 of the EC Treaty. Article 7(3) of Decision
93/731 is irrelevant in that connection, since reference to the
possibility of an action under Article 173 of the EC Treaty cannot
enlarge the jurisdiction of the Court.
73 According to the applicant, Decision 93/731 itself expressly
confirms that the Court has jurisdiction in cases concerning
application of that decision, since it specifies that its provisions
are applicable to any document held by the Council. The criterion
for application of Decision 93/731 is therefore the fact that
the document is held by the Council, irrespective of its subject-matter,
with the exception of documents drawn up outside the Council.
In Case T-194/94 Carvel and Guardian Newspapers v Council [1995]
ECR II-2765, the Court of First Instance annulled a decision
whereby the Council had refused the applicants access to the
decisions adopted by the `Justice and Home Affairs' Council;
the Council did not contest the jurisdiction of the Court to
adjudicate on access to documents falling under Title VI of the
EU Treaty in that case.
74 That argument is supported by the Swedish, Danish and Netherlands
Governments. Although the Court has no jurisdiction to review
the legality of Title VI documents, it does have jurisdiction
over matters concerning public access to those documents.
75 The Netherlands Government adds that the contested decision
was not adopted on the basis of Title VI of the EU Treaty, nor
does that Title constitute the legal basis of Decision 93/731.
The Court will not therefore be required to adjudicate on cooperation
in Justice and Home Affairs as such.
Findings of the Court
76 Before considering the objection raised by the French and
United Kingdom Governments, it is appropriate to consider its
admissibility in the light of the Rules of Procedure.
77 This objection was not raised by the Council in the written
pleadings. Furthermore, an application to intervene is to be
limited to supporting the form of order sought by one of the
parties (final paragraph of Article 37 of the EC Statute of the
Court of Justice, applicable to the Court of First Instance by
virtue of Article 46 of that Statute).
78 It follows that the French and United Kingdom Governments
are not entitled to raise an objection to admissibility and that
the Court is not therefore obliged to consider the submissions
they have made in that regard (see Case C-313/90 CIRFS and Others
v Commission [1993] ECR I-1125, paragraph 22).
79 However, under Article 113 of the Rules of Procedure, the
Court may at any time of its own motion consider whether there
exists any absolute bar to proceeding with a case, including
any raised by interveners (Case T-239/94 EISA v Commission [1997]
ECR II-1839, paragraph 26).
80 In this case the issue as to admissibility raised by the French
and United Kingdom Governments does involve an absolute bar to
proceeding in that it turns upon the jurisdiction of the Court
to entertain the application. It can accordingly be examined
by the Court of its own motion.
81 In this regard, Decision 93/731, in Articles 1(2) and 2(2),
expressly provides that it is to apply to all Council documents.
Decision 93/731 therefore applies irrespective of the contents
of the documents requested.
82 Moreover, pursuant to Article K.8(1) of the EU Treaty, measures
adopted pursuant to Article 151(3) of the EC Treaty, which is
the legal basis for Decision 93/731, are applicable to measures
within the scope of Title VI of the EU Treaty.
83 Thus, Council Decision 93/662/EC of 6 December 1993 adopting
the Council's Rules of Procedure (OJ 1993 L 304, p 1), which
was adopted on the basis of inter alia Article 151(3) of the
EC Treaty, also applies to meetings of the Council relating to
Title VI of the EU Treaty.
84 It follows that, in the absence of any provision to the contrary
in Decision 93/731 itself, its provisions apply to documents
relating to Title VI of the EU Treaty.
85 The fact that the Court has, by virtue of Article L of the
EU Treaty, no jurisdiction to review the legality of measures
adopted under Title VI does not curtail its jurisdiction in the
matter of public access to those measures. The assessment of
the legality of the contested decision is based upon its jurisdiction
to review the legality of decisions of the Council taken under
Decision 93/731, on the basis of Article 173 of the EC Treaty,
and does not in any way bear upon the intergovernmental cooperation
in the spheres of Justice and Home Affairs as such. In any event,
in the contested decision the Council itself drew the applicant's
attention to its entitlement to appeal under Article 173 of the
EC Treaty (see above, paragraph 18).
86 The fact that the documents relate to Title VI only is relevant
in so far as the contents of the documents might possibly come
within the scope of one or more of the exceptions provided for
in Decision 93/731. That fact is thus relevant only to the examination
of the substantive lawfulness of the decision taken by the Council
and not to the admissibility of the application as such.
87 It follows from the foregoing that the application is admissible.
Substance
88 The applicant puts forward five pleas in law in support of
its application for the annulment of the contested decision,
namely: breach of the fundamental principle of Community law
that citizens of the European Union should be granted the widest
and fullest possible access to Community institutions' documents;
breach of the principle of protection of legitimate expectations;
infringement of Article 4(1) of Decision 93/731; infringement
of Article 4(2) of Decision 93/731; and infringement of Article
190 of the EC Treaty.
89 The Court will first examine the third and fifth pleas together.
Third and fifth pleas in law: infringement of Article 4(1) of
Decision 93/731 and infringement of Article 190 of the EC Treaty
Arguments of the parties
- Infringement of Article 4(1) of Decision 93/731
90 The applicant claims that the Council did not make a real
assessment of the likely impact that granting access to the documents
requested might have on public security in the European Union.
On the contrary, the fact that a confirmatory application was
necessary before the Council agreed to release one of the documents
which had already been handed over to the European Parliament
and was thus fully in the public domain is particularly disturbing
in that respect.
91 In the absence of a definition of public security in Decision
93/731, the applicant suggests the following definition:
`documents or passages of documents whose access by the public
would expose Community citizens, Community institutions or Member
States' authorities to terrorism, crime, espionage, insurrection,
destabilisation and revolution, or would directly hinder the
authorities in their efforts to prevent such activities, shall
not be accessible by virtue of the public security exception'.
92 The applicant then gives a precise description of the contents
of all the documents requested that are in its possession, in
support of its argument that the public security exception was
applied in an unlawful manner by the Council.
93 It rejects the Council's assertion that it would not be in
the interest of public security to allow those involved in illicit
activities to obtain detailed knowledge of the structures and
means available to police cooperation in the European Union.
That assertion simply bears no relation to the actual content
of the documents in question. The applicant points out that the
two documents to which the Swedish authorities refused access
concerned not public security but the negotiating positions of
the Kingdom of the Netherlands and the Federal Republic of Germany.
94 The Council denies that it considered all the documents relating
to Europol to be covered by the public security exception. The
fact that four documents were disclosed shows that a real assessment
was carried out, the outcome of which was that some of the requested
documents could be released, whilst others could not.
95 The Council, supported by the French and United Kingdom Governments,
contends that there is in any case no need to adopt a restrictive
definition of public security for the purposes of the application
of Decision 93/731. `Public security' must be defined in a flexible
way in order to meet changing circumstances. In any event, an
assessment as to whether the release of a specific document could
undermine the protection of the public interest (public security)
can only be made by the Council itself.
96 That applies particularly as regards documents dealing exclusively
with issues which fall under Titles V and VI of the EU Treaty.
The Council trusts that, should the Court consider that it has
jurisdiction in matters concerning access to documents dealing
exclusively with matters falling under Title VI of the EU Treaty,
it would nevertheless refrain from substituting its assessment
for that of the Council in this regard.
97 The Council considers that the applicant's summary of the
documents in question is neither objective nor precise.
98 The Swedish Government takes issue with the description given
by the Council of the way in which the Information Working Party
and Coreper dealt with the request for access to the documents
in question.
99 In particular the documents requested were not made available
to the Swedish representative in the Information Working Party
before its meeting. The matter could not be dealt with satisfactorily
in the short time available.
100 As far as Coreper was concerned, the only matter addressed
by it was whether a decision concerning the request for disclosure
could be taken by written procedure. When Coreper voted on 5
July 1995, the Swedish Government and four other Member States
abstained. The Swedish Government made a statement expressing
its dissatisfaction at the way the case had been handled.
101 The Danish Government shares to a large extent the Swedish
Government's criticism of the way the case was handled. It considers
that the Council's assessment of the various documents was purely
formalistic. In the Council Secretariat the possibilities of
derogation in Article 4(1) of Decision 93/731 were first examined
and it was thought that considerations of public security could
justify withholding of documents relating to Europol in general.
When the confirmatory application was being examined, doubts
arose as to whether public security considerations could really
be applied generally as a ground for withholding Europol documents.
Accordingly, it was then decided to retreat to a statement of
reasons based on the very general considerations of Article 4(2)
of Decision 93/731. The discussion in the Council Secretariat
did not focus on whether publication would entail a risk of real
adverse consequences either for public security or the requirement
of confidentiality.
102 The Netherlands Government, having examined the documents
in question, considers that the refusal to grant access to the
documents cannot under any circumstances be justified by the
requirements of public security. However, it reserves its opinion
as far as a document which is not in its possession is concerned.
In its view, in order to establish whether the Council was justified
in refusing access to the documents in question on the ground
of public security, it is necessary to examine, document by document,
whether access to them would undermine the fundamental interests
of the Community or of the Member States to the extent that their
existence would be jeopardised. It points out that the Council
later agreed to make available at least four of those documents
to a journalist, Mr T., and that the refusal to grant the applicant
access to those documents therefore constitutes arbitrary discrimination.
103 The Council insists that the content of the documents was
in fact examined. It considers that there is no evidence that
the other members of the Council who abstained did so for the
same reasons as the Swedish Government. No Member State voted
against the confirmatory decision or associated itself with the
Swedish Government's statement.
- Infringement of Article 190 of the EC Treaty
104 The applicant claims that the refusal, expressed in a single
sentence, to grant access to 16 of the 20 documents does not
satisfy the requirements of Article 190 of the EC Treaty or Article
7(3) of Decision 93/731. It was impossible for it to assess whether
the refusal should be challenged before the Court, and equally
impossible for the Court to assess whether the Council had made
proper use of the exceptions referred to above. It was only because
the applicant had in its possession most of the documents concerned,
in full or in part, that it was able to show that the Council
had applied those exceptions unlawfully in the present case.
It asks the Court to examine the documents concerned in order
to assess whether the Council was justified in availing itself
of the exceptions cited.
105 The Council, supported by the French and United Kingdom Governments,
contends that the statement of reasons for the contested decision
discloses the essential objective pursued by the Council and
its decision is therefore duly reasoned. It would be excessive
to require a specific statement of reasons for each of the technical
choices made by the institution. If it were necessary to provide
a very detailed statement of reasons in the case of negative
responses to requests for access, the underlying objectives of
Article 4(1) would be compromised. Decision 93/731 lays down
very tight time-limits for replying to applications. Consequently,
when applications cover many documents involving large numbers
of pages, the statement of reasons which can be provided will
inevitably be rather briefer than the statement of reasons given
in reply to applications of a more limited scope. Furthermore,
the requested documents clearly had an essentially common subject-matter.
106 The Swedish Government maintains that the balancing of the
Council's interest in maintaining the confidentiality of its
proceedings and the public's interest in having access to documents
should be undertaken in relation to each separate document and
that the decision does not state sufficient reasons. It claims
that the Council does not indicate whether both the reasons given
for maintaining confidentiality are applicable to all the documents
or, if that is not the case, which reason or reasons for maintaining
confidentiality are applicable to each particular document. The
public is entitled to know, from the particular circumstances
surrounding each separate action or matter, why a specific document
is to be kept confidential.
107 The Danish Government states that it is not sufficient to
refer in general to the possibilities of derogation and to reproduce
the terms of Decision 93/731. Refusal under Article 4(1) of that
decision cannot lawfully be explained by indicating that a particular
interest which is included therein can be regarded generally
as affected, just as the option of derogation with regard to
the duty of confidentiality in Article 4(2) cannot form the basis
of a refusal in general terms. The principle of assessment on
the facts is applicable and in certain cases the Council might
be required to produce a document with any information requiring
protection under Article 4 deleted.
108 The Netherlands Government also states that the Council's
reason for refusing access to the various documents is obscure.
The contested decision confines itself to repeating the criteria
in Article 4 of Decision 93/731 and does not reveal which documents
were withheld on the basis of Article 4(1) and which withheld
on the basis of Article 4(2). As regards the documents to which
access was refused on the ground of confidentiality of the Council's
proceedings, it does not appear, moreover, from the contested
decision, that the requisite balancing of interests took place.
Findings of the Court
109 Decision 93/731 is a measure which confers on citizens rights
of access to documents held by the Council. It is clear from
the scheme of the decision that it applies generally to requests
for access to documents and that any person is entitled to ask
for access to any Council document without being obliged to put
forward reasons for the request (see above, paragraph 65).
110 There are two categories of exception to the principle of
general access for citizens to Council documents set out in Article
4 of Decision 93/731. These exceptions must be construed and
applied restrictively so as not to defeat the general principle
enshrined in the decision (see, in relation to the analogous
provisions of Decision 94/90, Case T-105/95 WWF UK v Commission
[1997] ECR II-313, paragraph 56).
111 The wording of the first category of exceptions, drafted
in mandatory terms, provides that access to a Council document
cannot be granted if its disclosure could undermine the protection
of the public interest (public security, international relations,
monetary stability, court proceedings, inspections and investigations)
(see above, paragraph 7). Accordingly, the Council is obliged
to refuse access to documents which come within any one of the
exceptions in this category once the relevant circumstances are
shown to exist (see Case T-194/94 Carvel and Guardian Newspapers
v Council, cited above, paragraph 64).
112 Nevertheless, it follows from the use of the verb `could',
in the present conditional, that in order to demonstrate that
the disclosure of particular documents could undermine the protection
of the public interest, the Council is obliged to consider in
respect of each requested document whether, in the light of the
information available to it, disclosure is in fact likely to
undermine one of the facets of public interest protected by this
first category of exceptions. If that is the case, the Council
is obliged to refuse access to the documents in question (Case
T-124/96 Interporc, cited above, paragraph 52, and Case T-83/96
van der Wal v Commission [1998] ECR II-0000, paragraph 43).
113 By way of contrast, the wording of the second category, drafted
in enabling terms, provides that the Council may also refuse
access in order to protect the confidentiality of its proceedings
(see above, paragraph 8). It follows that the Council enjoys
a margin of discretion which enables it, if need be, to refuse
access to documents which touch upon its deliberations. It must,
nevertheless, exercise this discretion by striking a genuine
balance between on the one hand, the interest of the citizen
in obtaining access to the documents and, on the other, any interest
of its own in maintaining the confidentiality of its deliberations
(Case T-194/94 Carvel and Guardian Newspapers, cited above, paragraphs
64 and 65).
114 The Council is also entitled to rely jointly on an exception
derived from the first category and one relating to the second
category in order to refuse to grant access to documents which
it holds, there being no provision in Decision 93/731 which precludes
it from so doing. The possibility cannot be ruled out that the
disclosure of particular documents by the Council could cause
damage both to the interest protected by the first category of
exception and to the Council's interest in maintaining the confidentiality
of its deliberations (Case T-105/95 WWF UK, cited above, paragraph
61).
115 In the light of these considerations, it is necessary to
consider whether the contested decision satisfies the criteria
laid down by Article 190 of the Treaty regarding the statement
of reasons.
116 The duty to state reasons in individual decisions has the
double purpose of permitting, on the one hand, interested parties
to know the reasons for the adoption of the measure so that they
can protect their own interests and, on the other hand, enabling
the Community court to exercise its jurisdiction to review the
validity of the decision (see, in particular, Case C-350/88 Delacre
and Others v Commission [1990] ECR 1-395, paragraph 15, and Case
T-85/94 Branco v Commission [1995] ECR II-45, point 32).
117 The statement of reasons for a decision refusing access to
a document must therefore contain - at least for each category
of documents concerned - the particular reasons for which the
Commission considers that disclosure of the requested documents
comes within the scope of one of the exceptions provided for
in Decision 93/731 (Case T-105/95 WWF UK, cited above, paragraphs
64 and 74, and Case T-124/96 Interporc, cited above, paragraph
54).
118 In the contested decision (see above, paragraph 18) the Council
indicated only that the disclosure of the 16 documents in question
would prejudice the protection of the public interest (public
security) and that the documents related to the proceedings of
the Council, particularly the views expressed by members of the
Council, and for that reason fell within the scope of the duty
of confidentiality.
119 Although the Council was at once invoking both the mandatory
exception based upon the protection of the public interest (public
security) and also the discretionary exception based upon protection
of the confidentiality of its proceedings, it did not specify
whether it was invoking both exceptions in respect of all of
the documents refused or whether it considered that some documents
were covered by the first exception while others were covered
by the second.
120 In that respect, the Court notes that although the initial
refusal contained in the letter of 1 June 1995 was based only
upon `the principle of confidentiality as set out in Article
4(1) of Decision 93/731' the Council was nevertheless able to
grant access to two further documents in the course of its consideration
of the confirmatory request, namely a report on the activities
of the Europol Drugs Unit (document No 4533/95) and a provisional
agenda for a meeting of Committee K.4 (document No 4135/95),
documents clearly relating to the activities of the Council within
the scope of Title VI of the EU Treaty. If the fact that such
documents related to Title VI of the EU Treaty meant that they
were automatically covered by the exception based upon the protection
of the public interest (public security), the Council had no
entitlement to grant access to the documents. Moreover, given
that the Council considered that it was entitled to grant access
to these two documents, having first balanced the interests involved,
it follows that the Council must necessarily have considered
that all of the documents relating to Title VI did not automatically
fall within the scope of the first exception based upon the protection
of the public interest (public security). Furthermore, the Council
itself admitted that it had not considered that all of the documents
connected with Europol were covered by the exception relating
to public security.
121 The case-law of the Court of Justice shows that the concept
of public security does not have a single and specific meaning.
Thus, the concept covers both the internal security of a Member
State and its external security (see Case C-70/94 Werner v Germany
[1995] ECR I-3189, paragraph 25), as well as the interruption
of supplies of essential commodities such as petroleum products
which may threaten the very existence of a country (Case 72/83
Campus Oil v Minister for Industry and Energy [1984] ECR 2727,
paragraph 34). The concept could equally well encompass situations
in which public access to particular documents could obstruct
the attempts of authorities to prevent criminal activities, as
the applicant has argued.
122 Mr Elsen's note (see above, paragraph 15) demonstrates that
most of the documents to which access was refused were concerned
only with negotiations on the adoption of the Europol Convention,
in particular the proposals of the Presidency and of other delegations
with regard to those negotiations, and not with operational matters
of Europol itself. Thus, in the absence of any explanation on
the part of the Council as to why the disclosure of these documents
would in fact be liable to prejudice a particular aspect of public
security, it was not possible for the applicant to know the reasons
for the adoption of the measures and therefore to defend its
interests. It follows that it is also impossible for the Court
to assess why the documents to which access was refused fall
within the exception based upon the protection of the public
interest (public security) and not within the exception based
upon the protection of the confidentiality of the Council's proceedings.
123 Nor can the Council claim that, in this instance, it was
unable to explain why the exception applied without undermining
the essential purpose of the exception, given the very nature
of the interest to be protected and the mandatory character of
the exception. In fact, Mr Elsen's note clearly shows that it
was possible to give an indication of the reasons why certain
documents could not be disclosed to the applicant without at
the same time disclosing their contents.
124 Finally, so far as concerns the exception in favour of the
protection of the confidentiality of its proceedings, the Council
did not specifically indicate in the contested decision that
all of the documents included in the applicant's request were
covered by the exception based upon the protection of the public
interest (see paragraph 119, above). The applicant could not
therefore rule out the possibility that access to some of the
documents in question was being refused because they were covered
only by the exception based upon the protection of the confidentiality
of its proceedings.
125 The terms of the contested decision do not, however, permit
the applicant and, therefore, the Court to check whether the
Council has complied with its duty to carry out a genuine balancing
of the interests concerned as the application of Article 4(2)
of Decision 93/731 requires. In fact, the contested decision
mentions only the fact that the requested documents related to
proceedings of the Council, including the views expressed by
members of the Council, without saying whether it had made any
comparative analysis which sought to balance, on the one hand,
the interest of the citizens seeking the information and, on
the other hand, the criteria for confidentiality of the proceedings
of the Council (see Case T-194/94 Carvel and Guardian Newspapers,
cited above, paragraph 74).
126 Moreover, the first reply from the Council - sent to the
applicant in French although the applicant had written the initial
request in German - confined itself to citing the provisions
of Article 4(1) of Decision 93/731, in support of its view that
the documents were subject to `the principle of confidentiality'.
It did not therefore permit the applicant or the Court to confirm
that the Council had genuinely balanced the interests involved
at the stage of its consideration of the applicant's first request.
127 It follows from all of the foregoing that the contested decision
does not comply with the requirements for reasoning as laid down
in Article 190 of the Treaty and must therefore be annulled without
there being any need to consider the other grounds raised by
the applicant or to look at the contents of the documents themselves.
The request of the Netherlands Government that the Court of First
Instance invite the Court of Justice to produce a note drafted
by its services
128 The Netherlands Government requests that the Court of First
Instance invite the Court of Justice to produce a note drafted
by the Research and Documentation service of the Court for the
purposes of that Court's judgment of 30 April 1996 in Case C-58/94
Netherlands v Council [1996] ECR I-2169.
129 As the present judgment is not based upon that note, there
is no need to rule on this request.
Publication of the defence on the Internet
Arguments of the parties
130 As indicated in paragraph 22 above, by letter received on
3 April 1996 the Council drew the attention of the Court to the
fact that certain pertinent documents, including the Council's
defence, had been published on the Internet. It considers that
the applicant's conduct was prejudicial to the proper course
of the procedure. The Council laid particular stress on the fact
that the text of the defence had been edited by the applicant
before it was placed on the Internet. Furthermore, the names
and contact details of the Council's Agents in the case were
given and the public encouraged to send their comments on the
case to those Agents. The Council requested the Court to take
any measures which might be appropriate in order to avoid further
such action on the part of the applicant.
131 By letter received on 3 May 1996, the applicant's lawyers
explained that they had played no role in the placing of the
defence and other documents concerning the case on the Internet.
They had no knowledge of those facts before receiving the letter
from the Registry of the Court of First Instance. They had immediately
asked the applicant to remove all the documents from the Internet,
and informed it that they would no longer be able to represent
it if that was not done.
132 In its observations received on 24 May 1996, the applicant
confirmed that it had placed the documents on the Internet without
informing its lawyers. It explained that the editing of the defence
had been carried out for purely practical reasons and that its
intention was not to alter its contents or weaken the Council's
case. It simply wanted to shorten the defence by not reproducing
certain passages in view of the time required to put the defence
on the Internet. It had no intention of putting pressure on the
Council and added that the names and contact details of the Council's
Agents were included simply because they knew about the case,
not to encourage the public to contact them directly as individuals.
133 The applicant undertook to refrain from placing on the Internet
or in any other way making available to the public any further
documents exchanged between the parties in the case. It would
thenceforth restrict itself to normal media reports on the case.
The applicant further indicated that it had taken the decision
to have the defence withdrawn from the Internet. However, the
document had been placed on the Internet by an independent organisation,
Grävande Journalister (an association of Swedish investigative
reporters and editors), which refused to withdraw it. Under Swedish
law the applicant had no legal means of forcing that association
to withdraw the document and the latter was therefore responsible
for keeping the defence on the Internet.
134 By letter received on 28 May 1996, the Swedish Government
explained that the Legal Director at the Ministry of Justice
had received a copy of the defence from the applicant and the
Legal Director had subsequently released a copy to a journalist
without any objection on the applicant's part. In doing so, the
Legal Director had taken into account the fact that the applicant
had already published a detailed report on the main elements
of the defence and had given the names of the representatives
of the Council concerned. Another factor in that decision was
that the document had not been transmitted to the Swedish Government
by a Community institution, but by a private individual who had
the right to dispose of the document and had already demonstrated
his willingness to disseminate it. The Ministry was in no way
involved in the publication of the defence on the Internet and
the newspaper's action in that respect was regarded as a provocation.
Findings of the Court
135 Under the rules which govern procedure in cases before the
Court of First Instance, parties are entitled to protection against
the misuse of pleadings and evidence. Thus, in accordance with
the third subparagraph of Article 5(3) of the Instructions to
the Registrar of 3 March 1994 (OJ 1994 L 78, p. 32), no third
party, private or public, may have access to the case-file or
to the procedural documents without the express authorisation
of the President, after the parties have been heard. Moreover,
in accordance with Article 116(2) of the Rules of Procedure,
the President may exclude secret or confidential documents from
those furnished to an intervener in a case.
136 These provisions reflect a general principle in the due administration
of justice according to which parties have the right to defend
their interests free from all external influences and particularly
from influences on the part of members of the public.
137 It follows that a party who is granted access to the procedural
documents of other parties is entitled to use those documents
only for the purpose of pursuing his own case and for no other
purpose, including that of inciting criticism on the part of
the public in relation to arguments raised by other parties in
the case.
138 In the present case, it is clear that the actions of the
applicant in publishing an edited version of the defence on the
Internet in conjunction with an invitation to the public to send
their comments to the Agents of the Council and in providing
the telephone and telefax numbers of those Agents, had as their
purpose to bring pressure to bear upon the Council and to provoke
public criticism of the Agents of the institution in the performance
of their duties.
139 These actions on the part of the applicant involved an abuse
of procedure which will be taken into account in awarding costs
(see below, paragraph 140), having regard, in particular, to
the fact that this incident led to a suspension of the proceedings
and made it necessary for the parties in the case to lodge additional
submissions in this respect.
Costs
140 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been applied
for in the successful party's pleadings. In this case the applicant
asked that the Council be ordered to pay the costs. However,
under Article 87(3) of the Rules, the Court may, where the circumstances
are exceptional, order that the costs be shared or that each
party bear its own costs. In view of the abuse of procedure found
to have been committed by the applicant, the Council will be
ordered to pay only two-thirds of the applicant's costs.
141 Pursuant to Article 87(4) of the Rules of Procedure, the
interveners will be ordered to pay their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Fourth Chamber, Extended Composition)
hereby:
1. Annuls the Council's decision of 6 July 1995 refusing the
applicant access to certain documents relating to the European
Police Office (Europol);
2. Orders the Council to pay two-thirds of the applicant's costs
as well as its own costs;
3. Orders the Kingdom of Denmark, the French Republic, the Kingdom
of the Netherlands, the Kingdom of Sweden and the United Kingdom
of Great Britain and Northern Ireland to bear their own costs. |
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