Following Sweden's accession to the European Union, the Swedish Journalists' Union decided to test the way in which the Swedish authorities applied Swedish citizens' right of access to information as regards documents relating to European Union activities. For that purpose it applied to 46 Swedish authorities for access to 20 Council documents relating to the setting up of Europol. Access to 18 of the 20 documents was granted, but certain passages in the documents were deleted.

The Journalists' Union also applied to the Council for access to the same 20 documents. In response to that first application, the Council allowed access to two documents only, but refused access to the other 18 on the ground that they were subject to the principle of confidentiality. Subsequently the Council granted access to two additional documents but denied access to the remaining 16 documents, stating that their release could be harmful to the public interest (public security) and that the documents related to the Council's proceedings. On the strength of that reply, the Journalists' Union brought this action.

Following the Declaration on the right of access to information, incorporated in 1992 in the Final Act of the Treaty on European Union by the Member States, the Commission and the Council adopted a Code of Conduct setting out the general principle that ?the public will have the widest possible access to documents held by the Commission and the Council'. The Code of Conduct sets out, in particular, the procedure to be followed if it is decided that an application for access to documents must be rejected, listing the circumstances which may be relied upon by an institution to justify such a rejection. The Council subsequently adopted a Decision implementing the principles laid down by the Code of Conduct.

According to that Decision, the Council is obliged to refuse access to a document where its disclosure could undermine the protection of the public interest, which includes ?public security'. The Council is also allowed to refuse access in order to protect the confidentiality of the Council's proceedings. If access is refused, the Council is obliged to state the grounds for that refusal.

With respect to a refusal of access in order to protect the confidentiality of the Council's proceedings, the Council has a discretion whether to apply the exception to the rule that access should be granted. Before deciding to refuse access, it must, however, weigh up the interest of the citizen in obtaining access to the documents against the need to maintain the confidentiality of its proceedings.

The Court of First Instance has confirmed that citizens have a right of access to documents held by the Council and may therefore apply for access to any document without giving particular reasons. The two categories of exception from the general principle that the public should have access to documents, set out above, must therefore be interpreted and applied restrictively.

Although the Court has no jurisdiction in respect of measures within the spheres of Justice and Home Affairs, and therefore no jurisdiction to review the legality of measures such as those at issue in this case, it has jurisdiction to rule on the question of access by the public to such measures.

The statement of reasons for a decision refusing access to a document must contain Ä at least for each category of documents concerned - the particular reasons on the basis of which the Council considers that the exceptions to the general principle of access to all documents may be relied upon.

In this case, although the Council was relying on both the mandatory exception based on the protection of the public interest and the discretionary exception based on protection of the confidentiality of its proceedings, it did not indicate whether it was relying on both exceptions in respect of all of the documents refused or whether it considered that some documents were covered by the first exception while others were covered by the second.

In the absence of any explanation on the part of the Council as to why the disclosure of these documents would in fact be liable to prejudice any particular aspect of public security, it was impossible for the Court to assess whether the documents to which access was refused fell within that exception. The Court of First Instance considered that it would have been possible for the Council to give an indication of the reasons for its refusal without at the same time disclosing the contents of the documents. So far as concerns the discretionary exception, the contested decision did not permit the applicant to check whether the Council had complied with its duty to carry out a genuine balancing of the interests concerned.

For the above-mentioned reasons, the Court of First Instance annulled the contested decision.

In addition, the Court of First Instance considered that the actions of the applicant in publishing an edited version of the defence on the Internet, in conjunction with an invitation to the public to send their comments to the Council's Agents, constituted an abuse of procedure. It therefore decided that the Council should be ordered to pay only two-thirds of the applicant's costs.

NB: an appeal, limited to points of law, may be brought before the Court of Justice against this decision of the Court of First Instance within two months of its notification.

This press release is an unofficial document for media use which does not bind the Court of First Instance. It is available in all the official languages.

For the full text of the judgment or for further information, please contact Tom Kennedy tel: (00352) 4303-3355 fax: (00352) 4303 2731