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Published online by Cambridge University Press: 17 January 2008
Amid rather less fanfare than one might perhaps have expected, the press, and, by extension, the public, of the European Union scored a modest victory for freer access to official information following the judgment of the Court of First Instance in the case of John Carvel & Guardian Newspapers Ltd (Denmark, The Netherlands and the European Parliament intervening) v. EU Council.' This case is the latest stage in an evolving policy of access to official information generally, a policy which has gained impetus with official concern about the so–called “democratic deficit” and a heightened awareness of the perceived remoteness of the European institutions from the daily lives of the citizens of the Union.
1. Case Tl 94/94. Judgment of the Court of First Instance: 19 Oct. 1995, reported [1995] 3 C.M.L.R. 359.
2. (1993) OJ. C156/05.
3. idem, p.5.
4. COM(93)258 Final (1993) OJ. C166/4.
5. See s.3 and Annex II.
6. Council Decision 93/662/EC of 6 Dec. 93, adopting new Council Rules of Procedure (hereafter “Council Rules”); (1993) OJ. L304/1.
7. Council Rules, Art.6.
8. idem, Art.6(2).
9. idem, Art.4.
10. idem, Art.7(5) provides that the voting records shall be made public (a) where the Council acts as legislator unless the Council decides otherwise; (b) where the Council is operating under the provisions of Art.189b of the Treaty; (c) where the Council acts in terms of Titles V and VI of the Union Treaty by unanimous decision; (d) in other cases on a decision taken at the request of one member. The latter is a potentially powerful bargaining tool, as will be noted below.
11. idem, Art.22/730/EC (1993) OJ. L340/41 (hereafter “the Code”).
13. 93/731/EC (20 Dec. 1993), (1993) OJ. L340/43 (hereafter “the Council Decision”).
14. Judgment, supra n.l. at paras.11–13.
15. Which provides for examination of applications by the relevant department of the Secretariat, “which shall suggest what action is to be taken on it”.
16. Art.3(2).
17. Quoted in the judgment, supra n.l. at para.16.
18. Ibid.
19. Letter from Council Secretariat 17 May 1994, quoted in idem, para.22.
20. See idem, para.43.
21. See further idem, para.45.
22. idem, para.48.
23. idem, para.52.
24. idem, para.57.
25. idem, para.58.
26. idem, para.62.
27. idem, para.65. However, the Court did not take the opportunity to consider the linguistic tension“shall” and the rather looser “could undermine”, which seems to imply a margin of appreciation.
28. idem, para.68.
29. idem, paras.78–80.
30. idem, paras.71–74.
31. “Guardian court victory piercing EU wall of secrecy hailed as breakthrough for citizens”; “Court lifts mantle of secrecy”; "Now read all about it: Guardian, 20 Oct. 1995.