European Court underlines public access rights

By EDRi · February 11, 2004

The European Court of Justice in a recent judgement has underlined the
rights to freedom of information. If a governmental document cannot be
disclosed in full for reasons of public security or institutional
confidentiality, it should at least be made available in part.

To promote freedom of information and grant ‘the widest possible access’
to relevant governmental documents, the European Council and Commission
adopted a Code of Conduct in December 1993, later both translating that
Code into (legally binding) Decisions. According to those Decisions,
access can only be refused if disclosure could undermine “the protection
of the public interest (public security, international relations, monetary
stability, court proceedings, inspections and investigations) or to
protect the institution’s interest in the confidentiality of its

In a case that started in March 1999, the Fin Olli Mattila demanded access
to a number of documents relating to negotiations about co-operation
between the EU and Russia. Both the Council and the Commission’s
Directorate-General for External Relations refused to give Mr Mattila the
requested documents, invoking the public interest exception in the Code of
Conduct and referring to the need to keep discussions between the European
Union and non-member countries confidential.

In September 1999 the Court of First Instance dismissed all of Mattila’s
access requests (for different reasons). Partial access would have been a
breach of the principle of proportionality according to this first
judgement, because examination of the documents in question shows that
partial access would be meaningless because the parts of the documents
that could be disclosed would be of no use to the applicant.

Appealing this decision, Mattila demanded at least partial access, “after
cancelling or editing the sections which may justifiably qualify as liable
to prejudice the international relations of the European Community.”
Mattilla argued that “it is for the person requesting access to decide
whether the information in a document has any relevance for him and not
for the Court of First Instance to decide this solely on the basis of the
assertions of the institution in whose possession the document is.” The
Council replied that it would be absurd and contrary to the principles of
sound administration and proportionality to disclose edited versions of
the documents consisting almost entirely of blank pages.

The Court does not except this line of reasoning and rules that
“institutions are obliged, under Decisions 93/731 and 94/90 respectively,
and in accordance with the principle of proportionality, to examine
whether partial access should be granted to the information not covered by
the exceptions, in the absence of which a decision refusing access to a
document must be annulled as being vitiated by an error of law.”

Press release Court of Justice (22.01.2004)

Judgement in case C-353/01 (available in 11 languages)!celexplus!prod!CELEXnumdoc&lg=en&numdoc=62001J0353

Statewatch observatory on EU public access cases