Openness case to go ahead

Date: 11/07/1996

By Ole Ryborg

THE European Court of Justice has decided to allow a controversial case concerning the public's right of access to EU documents to go ahead, despite anger over a breach in the strict confidentiality rule which governs all cases brought before the Court.

The ECJ has agreed to hear the case even though the Swedish magazine which launched it - and the Stockholm government - are continuing to flout the Court's rules by making a confidential document concerning the case available to the public.

Sources say that the Court has decided not to carry out its threat to dismiss the case, which involves key issues of principle, in response to requests from all the parties involved for it to go ahead.

The ECJ took the unprecedented step of suspending the case in May after learning that the Swedish journalists' magazine Tidningen Journalisten, which is challenging the Council of Ministers' policy on access to documents, had published an edited version of the Council's defence submission on the Internet.

The offence was compounded by the Swedish government's decision to hand over copies of the document to journalists who requested a full transcript from the Stockholm justice ministry.

Both moves were a breach of the ECJ's rules which state that all written submissions concerning cases under consideration must remain confidential, and prompted warnings from the Court that it was considering throwing out the case.

The Court asked the magazine and the Swedish authorities to explain their actions and consulted all other parties to the case on whether, in the light of this breach of its rules, it should go ahead or be abandoned.

After considering their responses, the ECJ has decided to proceed - even though both the magazine and the Stockholm government have continued to make the document available to the public.

When the controversy first erupted two months ago following complaints to the ECJ from the Council of Ministers, the editor of Tidningen Journalisten promised to remove the offending document from the Internet. But this week it was still there.

In addition, European Voice has received a letter from Swedish Minister of Justice Laila Freivalds, dated 27 June, agreeing to our request for a copy of the document.

In her letter, Freivalds defends the Swedish decision to continue handing out the document, saying it has been on the Internet for a long time and that it is therefore "already known to a broader public both in Sweden and abroad".

Freivalds adds: "Against that background, the government does not find grounds to believe that publication of this information would harm the government's intergovernmental relations."

The case, which centres on a challenge by the magazine to the Council of Ministers' refusal to hand over all but four of the 20 documents concerning Europol requested by its journalists, is now expected to be heard after the summer break.

A specialist in legal affairs said this week that the Court's decision to proceed did not mean that the controversy surrounding the publication of the Council document on the Internet and its release by the Swedish authorities was closed. "It simply means that the Court reserves the right to give a ruling on that together with the ruling on the failure to publish the 16 documents," he said.

That leaves open the possibility that the Court's eventual ruling could threaten Sweden's 200-year-old freedom of information act and force it - along with other Scandinavian governments - to change national laws on access to documents.