Nordic press takes openness to court

Date: 08/02/1996

By Ole Ryborg

A NEW legal battle over EU rules on public access to Union documents is looming.

The latest case centres on the system of open government which operates in Sweden and Denmark, two countries with a tradition of granting the public access to EU documents which are not available from the Union's own institutions.

The case has been brought by the Swedish journalists' magazine Tidningen Journalisten, which conducted a test designed to expose the difference between the EU's much-vaunted new openness policy and its own government's approach.

The magazine asked for access to 20 different EU documents relating to the justice and home affairs pillar of the Maastricht Treaty and was refused access to all but four by the Council of Ministers. In stark contrast, the Swedish authorities handed over 18 out of the 20 documents requested.

It will now be up to the European Court of First Instance to decide whether the Council or the Swedish government handled the request incorrectly.

Tidningen Journalisten's case has won the backing of Sweden's European Affairs Minister Mats Hellström and Danish Foreign Minister Niels Helveg Petersen, who have both announced that they will support the magazine when it is heard by the Court.

Lawyers for the two Nordic countries argue that the Council did not even examine the contents of the documents it was asked to supply, but simply rejected the vast majority of requests made on the grounds that releasing the documents concerned could pose a risk to the internal security of the EU.

Lawyers in the Council's judicial service reject this, insisting that each document was judged by the Council on its own merit.

At the centre of the case is the question of whether national governments have the right to hand out documents to the public which the Council refuses to release. Lawyers for the Council will argue that EU documents are not the property of national governments, but of the Union in general.

Any judgement limiting the right of national authorities to release documents could fuel Eurosceptic sentiment in both Denmark and Sweden. The Danish government has already promised the public wide access to information during the Intergovernmental Conference and any reneging on that pledge at the behest of the Court would almost certainly spark protests at home.

Other member states have until 25 February to make submissions on the case to the Court.

The latest legal battle over openness comes in the wake of a landmark judgement by the Court last October, when European judges ordered the Council of Ministers to conduct its business in a more open and transparent way.

Its ruling followed a lengthy legal battle by UK newspaper The Guardian against the institution for its refusal to reveal the minutes of a controversial ministerial meeting on child labour laws.

The Court of First Instance ruled that while the Council could refuse access to documents when, for example, public health was at risk, it could not impose a blanket ban on disclosure.