Commission in the dock over secrecy

Date: 14/03/1996

By Michael Mann

THE European Commission is facing unprecedented legal action which could force the institution to open its doors to greater public scrutiny.

In a ground-breaking submission to the Court of First Instance in Luxembourg, the World Wide Fund for Nature (WWF) has acccused the Commission of failing to honour its legal commitment to a policy of openness.

The case will be the first ever challenge to the Commission's interpretation of the Code of Conduct on Access to Information adopted by the Commission and the Council of Ministers in February 1994.

The WWF claims Commission officials are interpreting the code so tightly as to render its commitment to openness completely worthless. It says victory in its legal battle would help make the EU more transparent by making it easier for groups all over the Union to gain access to internal papers.

The organisation has gained the support of the Swedish government in its fight to lift the veil of secrecy from Commission business. But France, the UK and Ireland have lined up behind the Commission.

The WWF decided to launch its attack after Commission Secretary-General David Williamson refused to release documents from Directorates-General XI (environment) and XVI (regional policy) relating to the allocation of Structural Fund money for the construction of a visitor centre at the Irish beauty spot of Mullaghmore.

WWF and Irish lobbyists An Taisce claimed they needed the papers to mount a court challenge against the potential environmental damage they believed the project would cause and to prevent Structural Fund money being used for the development.

The organisation believes Williamson's decision to deny them access to the relevant papers was a clear violation of the code of conduct. It also accuses the Commission of violating its treaty obligation to explain the reasons for its decision clearly.

The code, drawn up in the wake of discussions during the last review of the EU treaties at Maastricht in 1991, is supposed to allow “the widest possible access to documents held by the Commission and Council”.

Exemptions were written into the code to protect, among other things, the confidentiality of their proceedings.

But Georg Berrisch, the WWF's counsel, argues: “If you're allowed to interpret all the exemptions in the way the Commission wants to, there's virtually nothing left of transparency. The exceptions must be interpreted strictly. This narrow interpretation of the code by the Commission's secretary-general must be challenged before it becomes established practice.”

WWF officials say refusing access to Commission documents is, in practice, the general rule and “granting such access is the exception”.

The organisation dismisses Commission claims that infringement proceedings must be carried out in secrecy. Instead, it argues, the Commission must come up with “imperative reasons” for its refusal to make public every individual document.

The latest case comes in the wake of last year's Court victory by The Guardian newspaper over the Council of Ministers for its refusal to disclose details of ministerial discussions on child labour.

The WWF rejects as “nonsense” the Commission's claim that the code does not constitute a right of access for EU citizens and that the burden of proof falls on the group seeking documents, arguing that The Guardian case proved the code was legally-binding.

The organisation, which hopes its case will be heard before the end of the year, is quietly confident that the defence being mounted by the Commission is less than foolproof.

In the run-up to this month's Intergovernmental Conference, there is a widely-felt belief that improved transparency is crucial to boost public confidence in the EU's institutions and demonstrate the benefits of Union membership.