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Published online by Cambridge University Press: 27 October 2017
Government by the people presupposes that citizens are fully aware of public matters and properly informed. Nowadays, this is well understood and increasingly accepted. However, there is still disagreement as to how citizens are to check their government and what the limits of such control should be. In my view, it is essential that this scrutiny is generally available to all citizens and that it is provided in binding legal terms, the application of which is subject to legal appeal. However, a less stringent standard of scrutiny is often provided. Indeed, confusion between concepts is patent in this field and overshadows what is really at issue—the recognition of a fundamental right for citizens, which forms a basis for the exercise of several other rights. The right of citizens to review the exercise of public power is ultimately the foundation of both the principle of democracy and popular sovereignty.
1 See, in this connection, Judgment of 19 February 1998 of the European Court of Human Rights in case Guerra and others v. Italy, Reports of Judgments and Decisions 1998.
2 It may come as no surprise that the principles presented have some similarities with the Swedish system. See Ragnemalm, H. Administrative Justice in Sweden (Stockholm, Juristförlaget, 1991) 117–123 Google Scholar; this survey derives from Vol. I of Administrative Law—The Problem of Justice (Rome, Giuffrè, 1991), concerning ‘Anglo-American and Nordic Systems’ which includes contributions by Professor Sir William Wade, Cambridge University, and Professor Peter L. Strauss, Columbia University Law School.
3 OJ 1993 L 304/9.
4 OJ 1993 L 340/43.
5 OJ 1994 L 46/58.
6 It may be noted, however, that the Council has now set up a public register accessible via the Internet.
7 Above n 4.
8 Case C–58/94 [1996] Netherlands v. Council ECR I–2169.
9 Above n 8 at paras 34 and 35.
10 Above n 8 at para 36.
11 Above n 8 at para 37.
12 Above n 8 at para 38.
13 Above n 8 at para 39.
14 Above n 8 para 36.
15 The decisions of the European Ombudsman, who has contributed in many ways to increase openness within the Community administration, fall outside the scope of this article.
16 Above n 8.
17 Case T–194/94 [1995] John Carvel and Guardian Newspapers, Ltd v. Council ECR II–2765.
18 Above n 17 at para 62.
19 Above n 8.
20 Case T–105/95 [1997] WWF UK v. Commission ECR II–313.
21 Above n 20 at para 55.
22 Above n 20 at para 56.
23 Case T–124/96 [1998] Interporc Im- und Export GmbH v. Commission ECR II–231.
24 Above n 23 at paras 46 and 47.
25 Above n 23 at para 48.
26 Above n 23 at para 49.
27 Case T–174/95 [1998] Svenska Journalistförbundet v. Council ECR II–2289.
28 Above n 27 at paras 66 and 109.
29 Case T–83/96 [1998] Gerhard van der Wal v. Commission ECR II–545. The judgment has been appealed before the Court of Justice (Case C–174/98 P (pending); see the Opinion of Advocate General Cosmas on 6 July 1999.
30 Above n 29 at para 41.
31 Case T–188/97 [1999] Rothmans International BV v. Commission (not yet reported).
32 Above n 20.
33 Above n 23.
34 Above n 31 at paras 53 and 54.
35 Above n 8.
36 Above n 31 at para 61.
37 Above n 8.
38 Case T–14/98 [1999] Heidi Hautala v. Council (not yet reported). The judgment has been appealed before the Court of Justice as Case C–353/99 P (pending).
39 Above n 38 at paras 77, 82 and 87.
40 Above n 29.