Legal test of openness code begins

Date: 12/09/1996

THE European Commission's pledge to bring more openness into its daily business faces its biggest test to date next week.

At a hearing next Wednesday (18 September), the European Court of First Instance will consider the World Wide Fund for Nature's (WWF) claim that the Commission broke its code of conduct on access to information by refusing to release documents on EU funding for a visitor centre at the Irish beauty spot of Mullaghmore.

Lawyers expect a final ruling on the case, the first to challenge the Commission's interpretation of the code adopted by the Council of Ministers in February 1994, before Christmas.

It follows last year's victory by The Guardian in a similar case against the Council for its refusal to disclose details of ministerial discussions on child labour.

The WWF believes that success in its legal battle would help to achieve the original aim of the code: to make Union business more transparent and make it easier for groups all over the EU to gain access to internal documents.

Its case is being backed by the Swedish government, traditionally a champion of openness in public administration, but both France and the UK have lined up behind the Commission. Ireland, which had originally intended to intervene on the Commission's behalf, has since chosen to remain on the sidelines.

In its written submission to the Court, the Commission insists the WWF complaint is not a test case on its information policy, and stresses the code should not be confused with fundamental rules set out in the EU treaties. It says the code is worded in such a way that, when it wishes to, it can refuse to hand over sensitive documents.

And while the WWF and Sweden argue that decisions on whether or not to release documents should be made on a case-by-case basis, the Commission claims the burden of proof lies with the group requesting the papers.

Evidently concerned by the implications of a WWF victory, the UK will tell the Court that the mere possibility of papers being released could destroy the atmosphere of mutual confidence which is necessary in talks between member states.

Paris also believes that current Union law in no way provides for a fundamental right of access to documents.

In July, the WWF lost its appeal on the original case which sparked its latest challenge. It had asked the Commission to disallow EU funding for the Mullaghmore visitor centre on environmental grounds. It was the Commission's refusal to hand over documents relating to the case that led the WWF to challenge the Commission's interpretation of the code.