JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber,Extended Composition)

17 June 1998 (1)

(Access to information — Council Decision 93/731/EC — Refusal of anapplication for access to Council documents — Action for annulment —Admissibility — Title VI of the Treaty on European Union — Scope of theexception concerning the protection of public security — Confidentiality of theCouncil's proceedings — Statement of reasons — Publication of the defence onthe Internet — Abuse of procedure)

In Case T-174/95,

Svenska Journalistförbundet, an association governed by Swedish law, establishedin Stockholm, represented by Onno W. Brouwer, of the Amsterdam Bar, andFrédéric P. Louis, of the Brussels Bar, assisted by Deirdre Curtin, Professor at theUniversity of Utrecht, with an address for service in Luxembourg at the Chambersof Loesch and Wolter, 11 Rue Goethe,

applicant,

supported by

Kingdom of Sweden, represented by Lotty Nordling, Director-General of the LegalService of the Ministry of Foreign Affairs, acting as Agent,

Kingdom of Denmark, represented by Peter Biering, Head of Department in theMinistry of Foreign Affairs, and Laurids Mikælsen, Ambassador, acting as Agents,

with an address for service in Luxembourg at the Danish Embassy, 4 BoulevardRoyal,

and

Kingdom of the Netherlands, represented by Marc Fierstra and Johannes Stevenvan den Oosterkamp, Legal Advisers, acting as Agents, with an address for servicein Luxembourg at the Embassy of the Netherlands, 5 Rue C.M. Spoo,

interveners,

v

Council of the European Union, represented by Giorgio Maganza and Diego CangaFano, Legal Advisers, acting as Agents, with an address for service in Luxembourgat the office of Alessandro Morbilli, Manager of the Legal Affairs Directorate ofthe European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

French Republic, represented by Catherine de Salins, Assistant Director in theLegal Department of the Ministry of Foreign Affairs, and Denys Wibaux, Secretaryfor Foreign Affairs in the same Ministry, acting as Agents, with an address forservice in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

and

United Kingdom of Great Britain and Northern Ireland, represented by JohnCollins, of the Treasury Solicitor's Department, acting as Agent, with an addressfor service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

interveners,

APPLICATION for the annulment of the Council's decision of 6 July 1995 refusingthe applicant access to certain documents concerning the European Police Office(Europol), requested under Council Decision 93/731/EC of 20 December 1993 onpublic access to Council documents (OJ 1993 L 340, p. 43),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber, ExtendedComposition),

composed of: K. Lenaerts, President, P. Lindh, J. Azizi, J.D. Cooke and M. Jaeger,Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 17 September1997,

gives the following

Judgment

1.

    In the Final Act of the Treaty on European Union ('the EU Treaty‘), signed inMaastricht on 7 February 1992, the Member States incorporated a Declaration (No17) on the right of access to information, in the following terms:

'The Conference considers that transparency of the decision-making processstrengthens the democratic nature of the institutions and the public's confidence inthe administration. The Conference accordingly recommends that the Commissionsubmit to the Council no later than 1993 a report on measures designed to improvepublic access to the information available to the institutions.‘

2.

    On 8 June 1993 the Commission published Communication 93/C 156/05 on publicaccess to the institutions' documents (OJ 1993 C 156, p. 5), which had beensubmitted to the Council, the Parliament and the Economic and Social Committeeon 5 May 1993. On 17 June 1993 it published Communication 93/C 166/04 onopenness in the Community (OJ 1993 C 166, p. 4), which had also been submittedto the Council, the Parliament and the Economic and Social Committee on 2 June1993.

3.

    On 6 December 1993 the Council and the Commission approved a Code ofConduct concerning public access to Council and Commission documents (OJ 1993L 340, p. 41, hereinafter the 'Code of Conduct‘), and each undertook to take stepsto implement the principles thereby laid down before 1 January 1994.

4.

    In order to put that undertaking into effect, the Council adopted on 20 December1993 Decision 93/731/EC on public access to Council documents (OJ 1993 L 340,p. 43, hereinafter 'Decision 93/731‘), the aim of which was to implement theprinciples established by the Code of Conduct. It adopted that decision on the basis

of Article 151(3) of the EC Treaty, which states that '[t]he Council shall adopt itsRules of Procedure‘.

5.

    Article 1 of Decision 93/731 provides:

'1.    The public shall have access to Council documents under the conditions laiddown in this Decision.

2.    ”Council document” means any written text, whatever its medium,containing existing data and held by the Council, subject to Article 2(2).‘

6.

    Article 2(2) provides that applications for documents the author of which is not theCouncil must be sent directly to the author.

7.

    Article 4(1) of Decision 93/731 provides:

'Access to a Council document shall not be granted where its disclosure couldundermine:

—    the protection of the public interest (public security, international relations,monetary stability, court proceedings, inspections and investigations),

—    the protection of the individual and of privacy,

—    the protection of commercial and industrial secrecy,

—    the protection of the Community's financial interests,

—    the protection of confidentiality as requested by the natural or legal personwho supplied any of the information contained in the document or asrequired by the legislation of the Member State which supplied any of thatinformation.‘

8.

    Article 4(2) adds that '[a]ccess to a Council document may be refused in order toprotect the confidentiality of the Council's proceedings.‘

9.

    Articles 2(1), 3, 5 and 6 of Decision 93/731 set out in particular the procedure forsubmitting applications for access to documents and the procedure to be followedby the Council when replying to such applications.

10.

    Article 7 provides:

'1.    The applicant shall be informed in writing within a month by the relevantdepartments of the General Secretariat either that his application has beenapproved or that the intention is to reject it. In the latter case, the applicant shallalso be informed of the reasons for this intention and that he has one month to

make a confirmatory application for that position to be reconsidered, failing whichhe will be deemed to have withdrawn his original application.

2.    Failure to reply to an application within a month of submission shall beequivalent to a refusal, except where the applicant makes a confirmatoryapplication, as referred to above, within the following month.

3.    Any decision to reject a confirmatory application, which shall be takenwithin a month of submission of such application, shall state the grounds on whichit is based. The applicant shall be notified of the decision in writing as soon aspossible and at the same time informed of the content of Articles 138e and 173 ofthe Treaty establishing the European Community, relating respectively to theconditions for referral to the Ombudsman by natural persons and review by theCourt of Justice of the legality of Council acts.

4.    Failure to reply within a month of submission of the confirmatoryapplication shall be equivalent to a refusal.‘

The facts

11.

    Following Sweden's accession to the European Union on 1 January 1995, theapplicant decided to test the way in which the Swedish authorities applied Swedishcitizens' right of access to information in respect of documents relating to EuropeanUnion activities. For that purpose it contacted 46 Swedish authorities, among whomwere the Swedish Ministry of Justice and the national Police Authority(Rikspolisstyrelsen), seeking access to a number of Council documents relating tothe setting up of the European Police Office (hereinafter 'Europol‘), includingeight documents held by the national Police Authority and 12 held by the Ministryof Justice. In response to its requests the applicant was granted access to 18 of the20 documents requested. It was refused access by the Ministry of Justice to twodocuments on the ground that they concerned the negotiating positions of theNetherlands and German Governments. Furthermore, certain passages in thedocuments to which access was granted had been deleted. In some documents itwas difficult to ascertain whether passages had been deleted or not.

12.

    On 2 May 1995 the applicant also applied to the Council for access to the same 20documents.

13.

    By letter dated 1 June 1995, the Council's General Secretariat allowed access totwo documents only, those being documents which contained communications bythe future French Presidency of its priorities in the field of asylum and immigrationand in the field of justice. Access to the other 18 documents was refused on theground that 'documents 1 to 15 and 18 to 20 are subject to the principle ofconfidentiality as laid down in Article 4(1) of Decision 93/731‘.

14.

    On 8 June 1995 the applicant submitted a confirmatory application to the Councilin order to obtain reexamination of the decision refusing access.

15.

    The competent department of the Council's General Secretariat, together with theCouncil's Legal Service, then prepared a note for the attention of the InformationWorking Party of the Permanent Representatives' Committee (hereinafter'Coreper‘) and the Council. A draft reply, together with the exchange ofcorrespondence that had taken place previously between the applicant and theGeneral Secretariat, was distributed with a note dated 15 May 1995 prepared byMr Elsen, Director-General of the Council's Justice and Home Affairs Directorate(DG H), when the first application was being examined (hereinafter 'Mr Elsen'snote‘). That note provided a brief summary of the contents of the documents anda preliminary assessment as to whether they could be released. It wascommunicated to the applicant for the first time in the course of the presentproceedings as an annex to the Council's defence. On 3 July 1995 the InformationWorking Party decided to release two other documents but to refuse access to theremaining 16. At a meeting on 5 July 1995 Coreper approved the terms of the draftreply proposed by the Working Party.

16.

    The Council points out that all the documents concerned were at the disposal ofthe members of the Council and that copies of the documents were also availablefor examination at the Information Working Party meeting of 3 July.

17.

    After the Coreper meeting, the Council replied to the confirmatory application bya letter dated 6 July 1995 (hereinafter 'the contested decision‘), in which it agreedto grant access to two other documents but rejected the application for theremaining 16 documents.

18.

    It explained that:

'[i]n the Council's opinion access to those documents cannot be granted becausetheir release could be harmful to the public interest (public security) and becausethey relate to the Council's proceedings, including the positions taken by themembers of the Council, and are therefore covered by the duty of confidentiality.

Lastly, I would like to draw your attention to the provisions of Articles 138e and173 of the EC Treaty concerning, respectively, the conditions governing the lodgingof a complaint with the Ombudsman and the institution of proceedings before theCourt of Justice by a natural person against acts of the Council.‘

Procedure

19.

    By application lodged at the Registry of the Court of First Instance on 22September 1995 the applicant instituted this action.

20.

    By a letter lodged on 9 February 1996, the European Parliament sought leave tointervene in the case in support of the applicant. It subsequently withdrew itsintervention.

21.

    By order of the President of the Fourth Chamber of the Court of First Instance of23 April 1996, the Kingdom of Denmark, the Kingdom of the Netherlands and theKingdom of Sweden were granted leave to intervene in support of the applicant,and the French Republic and the United Kingdom of Great Britain and NorthernIreland were granted leave to intervene in support of the defendant.

22.

    By letter received on 3 April 1996 the Council drew the attention of the Court ofFirst Instance to the fact that certain material documents, including the Council'sdefence, had been published on the Internet. The Council considered that theapplicant's conduct was prejudicial to the proper course of the procedure. Itrequested the Court to take appropriate measures in order to avoid further suchaction on the part of the applicant.

23.

    The Court decided to treat this incident as a preliminary issue within the meaningof Article 114(1) of the Rules of Procedure, and accordingly invited the parties tosubmit observations on the matter. The written procedure was suspended in themeantime. Observations were received from the applicant and from the Danish,French, Netherlands, Swedish and United Kingdom Governments.

24.

    In the light of those observations the Court decided that the proceedings would beresumed, without prejudice to the consequences it would attach to that preliminaryissue (see below, paragraphs 135 to 139).

25.

    By decision of 4 June 1996, the Court referred the case to the Fourth Chamber,Extended Composition. It did not accede to a request by the Council of 20 June1996 that the case be referred to the Court sitting in plenary session.

26.

    The written procedure was concluded on 7 April 1997.

Forms of order sought by the parties

27.

    The applicant, supported by the Kingdom of Denmark and the Kingdom of theNetherlands, requests the Court to:

—    annul the contested decision;

—    order the Council to pay the costs.

28.

    The Kingdom of Sweden requests the Court to annul the contested decision.

29.

    The Council requests the Court to:

—    declare the application inadmissible in its entirety;

—    alternatively, declare the application inadmissible in so far as it relates todocuments which have already been received by the applicant and do notcontain deleted passages;

—    in the further alternative, reject it as unfounded;

—    order the applicant to pay the costs.

30.

    The French Republic requests the Court to:

—    dismiss the application;

—    order the applicant to pay the costs.

31.

    The United Kingdom requests the Court to dismiss the application as inadmissibleor, in the alternative, as unfounded.

Admissibility

32.

    The Council claims that the application is inadmissible on several grounds, relatingto the identity of the applicant, non-compliance with the time-limit for bringing anaction, the applicant's lack of interest in bringing the action and the Court's lackof jurisdiction. Each of those grounds will be examined in turn.

The identity of the applicant

33.

    Svenska Journalistförbundet is the Swedish Journalists' Union. It owns andpublishes a newspaper entitled Tidningen Journalisten. The application is headed'Svenska Journalistförbundets tidning‘ and 'Tidningen Journalisten‘. Theapplication states that the applicant is the magazine of the Swedish Journalists'Union, but the link between the two entities is not clearly explained. During thewritten procedure Tidningen Journalisten was therefore designated as 'theapplicant‘.

Arguments of the parties

34.

    In reply to a written question from the Court, the applicant's lawyers indicated byfax message of 4 August 1997 that the application should be regarded as havingbeen lodged by the Swedish Journalists' Union as the proprietor of the magazine,since it alone of the two entities had capacity to sue under Swedish law.

35.

    At the hearing they added that any distinction between the Swedish Journalists'Union and Tidningen Journalisten was artificial. The application and confirmatoryapplication sent to the Council had been presented on headed paper of SvenskaJournalistförbundet and Tidningen Journalisten and the Council replied to SvenskaJournalistförbundets Tidning. Svenska Journalistförbundet was thus a party to thecase from the outset.

36.

    The Netherlands Government considers that it would be too formalistic to considerthat an action instituted by an independent division of a legal person could not beattributed to that legal person, given that it is now clear that adequate proof ofauthority was produced when the action was instituted and the interests of theparties to the proceedings have not been injured in any way.

37.

    In a letter of 9 September 1997, the Council contends that in the light of the repliesof the applicant's lawyers Tidningen Journalisten, which it had regarded as theapplicant in the case, had no capacity to sue under Swedish law.

38.

    It further contends that even if the Swedish Journalists' Union could be substitutedfor Tidningen Journalisten, the former could not be regarded as the addressee of theCouncil's reply of 6 July 1995, nor as directly and individually concerned by thatdecision.

39.

    It therefore asks the Court to dismiss the application as inadmissible.

Findings of the Court

40.

    The first page of the application refers to both Tidningen Journalisten and'Svenska Journalistförbundets tidning‘.

41.

    The proof of authority granted to the applicant's lawyers as required by Article44(5)(b) of the Rules of Procedure was signed on behalf of the Swedish Journalists'Union by Lennart Lund, Editor in Chief of the magazine Tidningen Journalisten. Inthat regard, the applicant has lodged, as an annex to its fax message of 4 August1997 (see paragraph 34 above), a certificate confirming that the SwedishJournalists' Union had instructed Lennart Lund to bring the present applicationbefore the Court.

42.

    In those circumstances it is clear that the application has, in reality, been broughtby the Swedish Journalists' Union as proprietor of Tidningen Journalisten.

43.

    The Swedish Journalists' Union being a legal person entitled to sue under Swedishlaw, the Council cannot object to the admissibility of the application on this basis.

44.

    Moreover, given that the Council had addressed the two negative replies of 1 June1995 and 6 July 1995 to 'Mr Christoph Andersson, Svenska Journalistförbundetstidning‘, it cannot at this stage argue that the Swedish Journalists' Union was notthe addressee of the contested decision.

The time-limit for bringing the action

Arguments of the parties

45.

    The Council questions whether the action was brought within the prescribed time-limit. It maintains that the applicant received the contested decision on 10 July1995. It then had two months from that date to bring an action for its annulment.

46.

    The Council points out that Article 1 of Annex II to the Court's Rules ofProcedure, in the version then applicable, provided that procedural time-limits wereto be extended for parties not habitually resident in the Grand Duchy ofLuxembourg by the following:

—    for the Kingdom of Belgium: two days,

—    for the Federal Republic of Germany, the European territory of the FrenchRepublic and the European territory of the Kingdom of the Netherlands:six days,

—    for the European territory of the Kingdom of Denmark, for the HellenicRepublic, for Ireland, for the Italian Republic, for the Kingdom of Spain,for the Portuguese Republic (with the exception of the Azores andMadeira) and for the United Kingdom: 10 days,

—    for other European countries and territories: two weeks.

47.

    The Council, supported by the French Government, doubts that the rule applicableto non-Member States should also apply to Member States of the European Unionand considers that the applicant should have brought its action in compliance witha time-limit extended on account of distance by ten days, in order to avoid anydiscrimination between applicants from countries that are further away fromLuxembourg than Sweden, which are entitled only to a ten-day extension.

48.

    The applicant relies on the actual terms of Article 1 of Annex II in the versionreproduced above, and considers that they do not support the Council's contention.There is no reference to 'Member States‘ or 'non-Member States‘. In the absenceof any specific extension for Sweden, that country was entitled to the extension oftwo weeks applicable to all the European States not specifically mentioned. TheCouncil's argument concerning discrimination does not carry conviction, sincenumerous places in Belgium are further away from Luxembourg than certain places

in the Netherlands, yet all inhabitants of Belgium are entitled to a two-dayextension while all inhabitants of the Netherlands are entitled to a six-dayextension. Only the applicant's interpretation satisfies the requirement of legalcertainty.

49.

    The Swedish and Netherlands Governments support that interpretation. At thehearing the Swedish Government's Agent pointed out that it was formerly entitledto an extension of two weeks.

Findings of the Court

50.

    It is settled law that the Community rules governing procedural time-limits must bestrictly observed both in the interest of legal certainty and in order to avoid anydiscrimination or arbitrary treatment in the administration of justice (Case C-59/91France v Commission [1992] ECR I-525, paragraph 8).

51.

    The wording of Article 1 of Annex II to the Rules of Procedure, in the version inforce when the application was brought, does not support the submission that theextension for distance applicable in the case of Sweden was ten days and not twoweeks. In fact, the ten-day extension applied only to certain designated countries,of which Sweden was not one. The extension of two weeks thus applied to allEuropean countries and territories for which a shorter period was not laid down,including Sweden.

52.

    It follows that the action was commenced within time.

The applicant's interest in seeking annulment

Arguments of the parties

53.

    The Council also doubts that the application is admissible inasmuch as it concernsdocuments that the applicant had already received from the Swedish authorities,at least to the extent that those documents do not contain deleted passages. TheCouncil was not informed that the purpose of the applicant's request was toidentify any passages in those documents which had been deleted. The applicant'sinterest is general and political in nature, its intention being to ensure that theCouncil gives proper effect to its own Code of Conduct and Decision 93/731.

54.

    In the circumstances, although the Council is conscious of the fact that theapplicant is the addressee of the contested decision, it questions whether theapplicant is really affected by that decision within the meaning of Article 173 of theEC Treaty. That article does not allow individual actions in the public interest, but

only permits individuals to challenge acts which concern them in a way in whichthey do not concern other individuals.

55.

    In this case the applicant cannot derive any benefit from obtaining access todocuments which are already in its possession. Its insufficient interest in theoutcome of the proceedings constitutes an abuse of procedure.

56.

    Supported by the French Government, the Council further contends that therelease of the documents in question by the Swedish authorities to the applicantconstitutes a breach of Community law, since no decision had been taken toauthorise such a disclosure. It is contrary to the system of legal remedies providedfor by Community law to take advantage of a breach of Community law and thento ask the Court to annul a decision whose effects have been circumvented as aconsequence of such a breach. The fact that the documents in question werebrought into the public domain following an act contrary to Community law shouldtherefore preclude the applicant from bringing an action in this case.

57.

    The applicant replies that the Council is confusing the rules on the admissibility ofactions for the annulment of decisions brought by their addressees with the ruleson the admissibility of actions for the annulment of regulations brought by certainindividuals. Addressees must show that they have an interest in bringing their actionbut do not have to prove that they are individually concerned.

58.

    In this case the applicant considers that it has a sufficient interest in bringing theaction and that that interest is neither political nor general in nature. It points outthat Tidningen Journalisten publishes articles on specific subjects of general interestand on the functioning of public authorities and other matters concerning the wayin which Swedish journalists can go about their job. It therefore has a direct interestin gaining access to Council documents and, if it is refused access for reasons whichdemonstrate that the Council is misapplying the relevant rules, in obtaining theannulment of the decision concerned so as to ensure that the Council rectifies itsapproach in the future. The fact that it has received documents from anothersource does not therefore mean that it has no interest in bringing the action.

59.

    In so far as the Council considers that the documents obtained from the Swedishauthorities without its prior authorisation were obtained unlawfully, the applicanthas a further ground for the application to be held admissible even as regardsdocuments obtained in full from the Swedish authorities. Any use which theapplicant may make of those documents will otherwise be thrown into doubt.

60.

    The applicant also rejects the Council's argument that the insufficient interest theapplicant has in the present proceedings makes the application an abuse ofprocedure. It points out that at the time when it requested access to the Council'sdocuments it had asked for and obtained from the national Police Authority only8 of the 20 documents in question. The other 12 documents were requested fromthe Swedish Ministry of Justice on the same day as it sent its request for the 20

documents to the Council. Furthermore, many of the documents obtained appearedto have deleted passages and the applicant could not, therefore, be sure that it hadreceived all the documents in full. The Council itself has not indicated to the Courtwhich documents contain deleted passages, although it has asked the Court todeclare the application inadmissible to the extent that it concerns documents whichthe applicant has obtained and which do not contain deleted passages. Theapplicant is therefore not in a position to know which documents do not containany such passages.

61.

    The Swedish Government supports the applicant's arguments as to admissibility. Itdoes not share the Council's view that the release of the documents in Swedenconstituted a breach of Community law. There is no implied Community rule basedon a common legal tradition whereby only the author of a document may decidewhether a document is to be released or not.

62.

    The Netherlands Government rejects the Council's argument as regards theapplicant's lack of interest in bringing proceedings. It states that it was precisely inthe public interest that Decision 93/731 was adopted. The applicant is not requiredtherefore to show a particular interest in order to be able to rely on it. Theapplication seeks to preserve the applicant's rights as the addressee of thecontested decision and is not an action in the general interest. The applicant hasan interest in seeking to prevent the Council from applying a restrictive policy inregard to requests by the applicant for access to documents in the future.Moreover, the Council's allegation that the applicant is in possession of documentsin breach of Community law is sufficient to show that the latter does have alegitimate interest. It goes without saying that the interest recognised by Decision93/731 relates to legally obtained access to a document.

63.

    The United Kingdom Government contends that the application is inadmissiblebecause the applicant has no sufficient interest in the outcome of the proceedings. The application is therefore an abuse of procedure. None of the reasons given bythe applicant is sufficient to give rise to an interest in bringing proceedings underArticle 173 of the EC Treaty.

Findings of the Court

64.

    The applicant is the addressee of the contested decision and, as such, is not obligedto prove that the decision is of direct and individual concern to it. It need onlyprove that it has an interest in the annulment of the decision.

65.

    In the case of Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994on public access to Commission documents (OJ 1994 L 46, p. 58, hereinafter'Decision 94/90‘), the Court has already held that from its overall scheme, it isclear that Decision 94/90 is intended to apply generally to requests for access to

documents, and that, by virtue of that decision, any person may request access toany unpublished Commission document, and is not required to give a reason forthe request (Case T-124/96 Interporc v Commission [1998] ECR II-0000,paragraph 48).

66.

    The objective of Decision 93/731 is to give effect to the principle of the largestpossible access for citizens to information with a view to strengthening thedemocratic character of the institutions and the trust of the public in theadministration. Decision 93/731, like Decision 94/90, does not require that membersof the public must put forward reasons for seeking access to requested documents.

67.

    It follows that a person who is refused access to a document or to part of adocument has, by virtue of that very fact, established an interest in the annulmentof the decision.

68.

    In this case the contested decision denied access to 16 of the 20 documentsrequested. The applicant has therefore proved an interest in the annulment of thatdecision.

69.

    The fact that the requested documents were already in the public domain isirrelevant in this connection.

The jurisdiction of the Court

Arguments of the parties

70.

    The French Government states that the contested decision concerns thearrangements for access to documents adopted on the basis of Title VI of the EUTreaty. No provision of Title VI governs the conditions of access to documentsadopted on the basis of its provisions. In the absence of an express provision,Decision 93/731, which was adopted on the basis of Article 151(3) of the ECTreaty, is not applicable to acts adopted on the basis of Title VI of the EU Treaty.

71.

    The United Kingdom Government contends that the jurisdiction of the Court ofFirst Instance does not extend to the matters covered by Title VI of the EU Treaty,and therefore to the question of access to the documents concerning those matters.Justice and Home Affairs fall outside the scope of the EC Treaty and are mattersfor inter-Governmental cooperation. It is clear from Article E of the EU Treatythat in relation to Justice and Home Affairs the institutions in question are toexercise their powers under the conditions and for the purposes provided for byTitle VI of the EU Treaty. In exercising those powers they are acting within thescope of Title VI, not of the EC Treaty. It follows from Article L of the EU Treatythat the provisions of the EC Treaty concerning the powers of the Court do notapply to Title VI of the EU Treaty. Accordingly the jurisdiction of the Court is

excluded as much in procedural matters as in matters of substance. In any event,it is frequently impossible to draw a clear-cut distinction between the two.

72.

    The United Kingdom Government accepts that Decision 93/731 applies to Title VIdocuments, but considers that it does not follow that the Court may exercisejurisdiction over a refusal to allow access to such documents. In particular, theCourt does not acquire jurisdiction simply because Decision 93/731 was adoptedpursuant to Article 151 of the EC Treaty. Article 7(3) of Decision 93/731 isirrelevant in that connection, since reference to the possibility of an action underArticle 173 of the EC Treaty cannot enlarge the jurisdiction of the Court.

73.

    According to the applicant, Decision 93/731 itself expressly confirms that the Courthas jurisdiction in cases concerning application of that decision, since it specifiesthat its provisions are applicable to any document held by the Council. Thecriterion for application of Decision 93/731 is therefore the fact that the documentis held by the Council, irrespective of its subject-matter, with the exception ofdocuments drawn up outside the Council. In Case T-194/94 Carvel and GuardianNewspapers v Council [1995] ECR II-2765, the Court of First Instance annulled adecision whereby the Council had refused the applicants access to the decisionsadopted by the 'Justice and Home Affairs‘ Council; the Council did not contestthe jurisdiction of the Court to adjudicate on access to documents falling underTitle VI of the EU Treaty in that case.

74.

    That argument is supported by the Swedish, Danish and Netherlands Governments.Although the Court has no jurisdiction to review the legality of Title VI documents,it does have jurisdiction over matters concerning public access to those documents.

75.

    The Netherlands Government adds that the contested decision was not adopted onthe basis of Title VI of the EU Treaty, nor does that Title constitute the legal basisof Decision 93/731. The Court will not therefore be required to adjudicate oncooperation in Justice and Home Affairs as such.

Findings of the Court

76.

    Before considering the objection raised by the French and United KingdomGovernments, it is appropriate to consider its admissibility in the light of the Rulesof Procedure.

77.

    This objection was not raised by the Council in the written pleadings. Furthermore,an application to intervene is to be limited to supporting the form of order soughtby one of the parties (final paragraph of Article 37 of the EC Statute of the Courtof Justice, applicable to the Court of First Instance by virtue of Article 46 of thatStatute).

78.

    It follows that the French and United Kingdom Governments are not entitled toraise an objection to admissibility and that the Court is not therefore obliged toconsider the submissions they have made in that regard (see Case C-313/90 CIRFSand Others v Commission [1993] ECR I-1125, paragraph 22).

79.

    However, under Article 113 of the Rules of Procedure, the Court may at any timeof its own motion consider whether there exists any absolute bar to proceeding witha case, including any raised by interveners (Case T-239/94 EISA v Commission[1997] ECR II-1839, paragraph 26).

80.

    In this case the issue as to admissibility raised by the French and United KingdomGovernments does involve an absolute bar to proceeding in that it turns upon thejurisdiction of the Court to entertain the application. It can accordingly beexamined by the Court of its own motion.

81.

    In this regard, Decision 93/731, in Articles 1(2) and 2(2), expressly provides that itis to apply to all Council documents. Decision 93/731 therefore applies irrespectiveof the contents of the documents requested.

82.

    Moreover, pursuant to Article K.8(1) of the EU Treaty, measures adopted pursuantto Article 151(3) of the EC Treaty, which is the legal basis for Decision 93/731, areapplicable to measures within the scope of Title VI of the EU Treaty.

83.

    Thus, Council Decision 93/662/EC of 6 December 1993 adopting the Council'sRules of Procedure (OJ 1993 L 304, p 1), which was adopted on the basis of interalia Article 151(3) of the EC Treaty, also applies to meetings of the Councilrelating to Title VI of the EU Treaty.

84.

    It follows that, in the absence of any provision to the contrary in Decision 93/731itself, its provisions apply to documents relating to Title VI of the EU Treaty.

85.

    The fact that the Court has, by virtue of Article L of the EU Treaty, no jurisdictionto review the legality of measures adopted under Title VI does not curtail itsjurisdiction in the matter of public access to those measures. The assessment of thelegality of the contested decision is based upon its jurisdiction to review the legalityof decisions of the Council taken under Decision 93/731, on the basis of Article 173of the EC Treaty, and does not in any way bear upon the intergovernmentalcooperation in the spheres of Justice and Home Affairs as such. In any event, inthe contested decision the Council itself drew the applicant's attention to itsentitlement to appeal under Article 173 of the EC Treaty (see above, paragraph18).

86.

    The fact that the documents relate to Title VI only is relevant in so far as thecontents of the documents might possibly come within the scope of one or moreof the exceptions provided for in Decision 93/731. That fact is thus relevant only

to the examination of the substantive lawfulness of the decision taken by theCouncil and not to the admissibility of the application as such.

87.

    It follows from the foregoing that the application is admissible.

Substance

88.

    The applicant puts forward five pleas in law in support of its application for theannulment of the contested decision, namely: breach of the fundamental principleof Community law that citizens of the European Union should be granted thewidest and fullest possible access to Community institutions' documents; breach ofthe principle of protection of legitimate expectations; infringement of Article 4(1)of Decision 93/731; infringement of Article 4(2) of Decision 93/731; andinfringement of Article 190 of the EC Treaty.

89.

    The Court will first examine the third and fifth pleas together.

Third and fifth pleas in law: infringement of Article 4(1) of Decision 93/731 andinfringement of Article 190 of the EC Treaty

Arguments of the parties

— Infringement of Article 4(1) of Decision 93/731

90.

    The applicant claims that the Council did not make a real assessment of the likelyimpact that granting access to the documents requested might have on publicsecurity in the European Union. On the contrary, the fact that a confirmatoryapplication was necessary before the Council agreed to release one of thedocuments which had already been handed over to the European Parliament andwas thus fully in the public domain is particularly disturbing in that respect.

91.

    In the absence of a definition of public security in Decision 93/731, the applicantsuggests the following definition:

'documents or passages of documents whose access by the public would exposeCommunity citizens, Community institutions or Member States' authorities toterrorism, crime, espionage, insurrection, destabilisation and revolution, or woulddirectly hinder the authorities in their efforts to prevent such activities, shall not beaccessible by virtue of the public security exception‘.

92.

    The applicant then gives a precise description of the contents of all the documentsrequested that are in its possession, in support of its argument that the publicsecurity exception was applied in an unlawful manner by the Council.

93.

    It rejects the Council's assertion that it would not be in the interest of publicsecurity to allow those involved in illicit activities to obtain detailed knowledge ofthe structures and means available to police cooperation in the European Union.That assertion simply bears no relation to the actual content of the documents inquestion. The applicant points out that the two documents to which the Swedishauthorities refused access concerned not public security but the negotiatingpositions of the Kingdom of the Netherlands and the Federal Republic ofGermany.

94.

    The Council denies that it considered all the documents relating to Europol to becovered by the public security exception. The fact that four documents weredisclosed shows that a real assessment was carried out, the outcome of which wasthat some of the requested documents could be released, whilst others could not.

95.

    The Council, supported by the French and United Kingdom Governments,contends that there is in any case no need to adopt a restrictive definition of publicsecurity for the purposes of the application of Decision 93/731. 'Public security‘must be defined in a flexible way in order to meet changing circumstances. In anyevent, an assessment as to whether the release of a specific document couldundermine the protection of the public interest (public security) can only be madeby the Council itself.

96.

    That applies particularly as regards documents dealing exclusively with issues whichfall under Titles V and VI of the EU Treaty. The Council trusts that, should theCourt consider that it has jurisdiction in matters concerning access to documentsdealing exclusively with matters falling under Title VI of the EU Treaty, it wouldnevertheless refrain from substituting its assessment for that of the Council in thisregard.

97.

    The Council considers that the applicant's summary of the documents in questionis neither objective nor precise.

98.

    The Swedish Government takes issue with the description given by the Council ofthe way in which the Information Working Party and Coreper dealt with therequest for access to the documents in question.

99.

    In particular the documents requested were not made available to the Swedishrepresentative in the Information Working Party before its meeting. The mattercould not be dealt with satisfactorily in the short time available.

100.

    As far as Coreper was concerned, the only matter addressed by it was whether adecision concerning the request for disclosure could be taken by written procedure.When Coreper voted on 5 July 1995, the Swedish Government and four otherMember States abstained. The Swedish Government made a statement expressingits dissatisfaction at the way the case had been handled.

101.

    The Danish Government shares to a large extent the Swedish Government'scriticism of the way the case was handled. It considers that the Council's assessmentof the various documents was purely formalistic. In the Council Secretariat thepossibilities of derogation in Article 4(1) of Decision 93/731 were first examinedand it was thought that considerations of public security could justify withholdingof documents relating to Europol in general. When the confirmatory applicationwas being examined, doubts arose as to whether public security considerationscould really be applied generally as a ground for withholding Europol documents.Accordingly, it was then decided to retreat to a statement of reasons based on thevery general considerations of Article 4(2) of Decision 93/731. The discussion in theCouncil Secretariat did not focus on whether publication would entail a risk of realadverse consequences either for public security or the requirement ofconfidentiality.

102.

    The Netherlands Government, having examined the documents in question,considers that the refusal to grant access to the documents cannot under anycircumstances be justified by the requirements of public security. However, itreserves its opinion as far as a document which is not in its possession is concerned.In its view, in order to establish whether the Council was justified in refusing accessto the documents in question on the ground of public security, it is necessary toexamine, document by document, whether access to them would undermine thefundamental interests of the Community or of the Member States to the extent thattheir existence would be jeopardised. It points out that the Council later agreed tomake available at least four of those documents to a journalist, Mr T., and that therefusal to grant the applicant access to those documents therefore constitutesarbitrary discrimination.

103.

    The Council insists that the content of the documents was in fact examined. Itconsiders that there is no evidence that the other members of the Council whoabstained did so for the same reasons as the Swedish Government. No MemberState voted against the confirmatory decision or associated itself with the SwedishGovernment's statement.

— Infringement of Article 190 of the EC Treaty

104.

    The applicant claims that the refusal, expressed in a single sentence, to grant accessto 16 of the 20 documents does not satisfy the requirements of Article 190 of theEC Treaty or Article 7(3) of Decision 93/731. It was impossible for it to assesswhether the refusal should be challenged before the Court, and equally impossiblefor the Court to assess whether the Council had made proper use of the exceptionsreferred to above. It was only because the applicant had in its possession most ofthe documents concerned, in full or in part, that it was able to show that theCouncil had applied those exceptions unlawfully in the present case. It asks theCourt to examine the documents concerned in order to assess whether the Councilwas justified in availing itself of the exceptions cited.

105.

    The Council, supported by the French and United Kingdom Governments,contends that the statement of reasons for the contested decision discloses theessential objective pursued by the Council and its decision is therefore dulyreasoned. It would be excessive to require a specific statement of reasons for eachof the technical choices made by the institution. If it were necessary to provide avery detailed statement of reasons in the case of negative responses to requests foraccess, the underlying objectives of Article 4(1) would be compromised. Decision93/731 lays down very tight time-limits for replying to applications. Consequently,when applications cover many documents involving large numbers of pages, thestatement of reasons which can be provided will inevitably be rather briefer thanthe statement of reasons given in reply to applications of a more limited scope.Furthermore, the requested documents clearly had an essentially common subject-matter.

106.

    The Swedish Government maintains that the balancing of the Council's interest inmaintaining the confidentiality of its proceedings and the public's interest in havingaccess to documents should be undertaken in relation to each separate documentand that the decision does not state sufficient reasons. It claims that the Councildoes not indicate whether both the reasons given for maintaining confidentiality areapplicable to all the documents or, if that is not the case, which reason or reasonsfor maintaining confidentiality are applicable to each particular document. Thepublic is entitled to know, from the particular circumstances surrounding eachseparate action or matter, why a specific document is to be kept confidential.

107.

    The Danish Government states that it is not sufficient to refer in general to thepossibilities of derogation and to reproduce the terms of Decision 93/731. Refusalunder Article 4(1) of that decision cannot lawfully be explained by indicating thata particular interest which is included therein can be regarded generally as affected,just as the option of derogation with regard to the duty of confidentiality in Article4(2) cannot form the basis of a refusal in general terms. The principle ofassessment on the facts is applicable and in certain cases the Council might berequired to produce a document with any information requiring protection underArticle 4 deleted.

108.

    The Netherlands Government also states that the Council's reason for refusingaccess to the various documents is obscure. The contested decision confines itselfto repeating the criteria in Article 4 of Decision 93/731 and does not reveal whichdocuments were withheld on the basis of Article 4(1) and which withheld on thebasis of Article 4(2). As regards the documents to which access was refused on theground of confidentiality of the Council's proceedings, it does not appear,moreover, from the contested decision, that the requisite balancing of interests tookplace.

Findings of the Court

109.

    Decision 93/731 is a measure which confers on citizens rights of access todocuments held by the Council. It is clear from the scheme of the decision that itapplies generally to requests for access to documents and that any person isentitled to ask for access to any Council document without being obliged to putforward reasons for the request (see above, paragraph 65).

110.

    There are two categories of exception to the principle of general access for citizensto Council documents set out in Article 4 of Decision 93/731. These exceptionsmust be construed and applied restrictively so as not to defeat the general principleenshrined in the decision (see, in relation to the analogous provisions of Decision94/90, Case T-105/95 WWF UK v Commission [1997] ECR II-313, paragraph 56).

111.

    The wording of the first category of exceptions, drafted in mandatory terms,provides that access to a Council document cannot be granted if its disclosure couldundermine the protection of the public interest (public security, internationalrelations, monetary stability, court proceedings, inspections and investigations) (seeabove, paragraph 7). Accordingly, the Council is obliged to refuse access todocuments which come within any one of the exceptions in this category once therelevant circumstances are shown to exist (see Case T-194/94 Carvel and GuardianNewspapers v Council, cited above, paragraph 64).

112.

    Nevertheless, it follows from the use of the verb 'could‘, in the present conditional,that in order to demonstrate that the disclosure of particular documents couldundermine the protection of the public interest, the Council is obliged to considerin respect of each requested document whether, in the light of the informationavailable to it, disclosure is in fact likely to undermine one of the facets of publicinterest protected by this first category of exceptions. If that is the case, the Councilis obliged to refuse access to the documents in question (Case T-124/96 Interporc,cited above, paragraph 52, and Case T-83/96 van der Wal v Commission [1998]ECR II-0000, paragraph 43).

113.

    By way of contrast, the wording of the second category, drafted in enabling terms,provides that the Council may also refuse access in order to protect theconfidentiality of its proceedings (see above, paragraph 8). It follows that theCouncil enjoys a margin of discretion which enables it, if need be, to refuse accessto documents which touch upon its deliberations. It must, nevertheless, exercise thisdiscretion by striking a genuine balance between on the one hand, the interest ofthe citizen in obtaining access to the documents and, on the other, any interest ofits own in maintaining the confidentiality of its deliberations (Case T-194/94 Carveland Guardian Newspapers, cited above, paragraphs 64 and 65).

114.

    The Council is also entitled to rely jointly on an exception derived from the firstcategory and one relating to the second category in order to refuse to grant accessto documents which it holds, there being no provision in Decision 93/731 whichprecludes it from so doing. The possibility cannot be ruled out that the disclosure

of particular documents by the Council could cause damage both to the interestprotected by the first category of exception and to the Council's interest inmaintaining the confidentiality of its deliberations (Case T-105/95 WWF UK, citedabove, paragraph 61).

115.

    In the light of these considerations, it is necessary to consider whether thecontested decision satisfies the criteria laid down by Article 190 of the Treatyregarding the statement of reasons.

116.

    The duty to state reasons in individual decisions has the double purpose ofpermitting, on the one hand, interested parties to know the reasons for theadoption of the measure so that they can protect their own interests and, on theother hand, enabling the Community court to exercise its jurisdiction to review thevalidity of the decision (see, in particular, Case C-350/88 Delacre and Others vCommission [1990] ECR 1-395, paragraph 15, and Case T-85/94 Branco vCommission [1995] ECR II-45, point 32).

117.

    The statement of reasons for a decision refusing access to a document musttherefore contain — at least for each category of documents concerned — theparticular reasons for which the Commission considers that disclosure of therequested documents comes within the scope of one of the exceptions provided forin Decision 93/731 (Case T-105/95 WWF UK, cited above, paragraphs 64 and 74,and Case T-124/96 Interporc, cited above, paragraph 54).

118.

    In the contested decision (see above, paragraph 18) the Council indicated only thatthe disclosure of the 16 documents in question would prejudice the protection ofthe public interest (public security) and that the documents related to theproceedings of the Council, particularly the views expressed by members of theCouncil, and for that reason fell within the scope of the duty of confidentiality.

119.

    Although the Council was at once invoking both the mandatory exception basedupon the protection of the public interest (public security) and also thediscretionary exception based upon protection of the confidentiality of itsproceedings, it did not specify whether it was invoking both exceptions in respectof all of the documents refused or whether it considered that some documents werecovered by the first exception while others were covered by the second.

120.

    In that respect, the Court notes that although the initial refusal contained in theletter of 1 June 1995 was based only upon 'the principle of confidentiality as setout in Article 4(1) of Decision 93/731‘ the Council was nevertheless able to grantaccess to two further documents in the course of its consideration of theconfirmatory request, namely a report on the activities of the Europol Drugs Unit(document No 4533/95) and a provisional agenda for a meeting of Committee K.4(document No 4135/95), documents clearly relating to the activities of the Councilwithin the scope of Title VI of the EU Treaty. If the fact that such documentsrelated to Title VI of the EU Treaty meant that they were automatically covered

by the exception based upon the protection of the public interest (public security),the Council had no entitlement to grant access to the documents. Moreover, giventhat the Council considered that it was entitled to grant access to these twodocuments, having first balanced the interests involved, it follows that the Councilmust necessarily have considered that all of the documents relating to Title VI didnot automatically fall within the scope of the first exception based upon theprotection of the public interest (public security). Furthermore, the Council itselfadmitted that it had not considered that all of the documents connected withEuropol were covered by the exception relating to public security.

121.

    The case-law of the Court of Justice shows that the concept of public security doesnot have a single and specific meaning. Thus, the concept covers both the internalsecurity of a Member State and its external security (see Case C-70/94 Werner vGermany [1995] ECR I-3189, paragraph 25), as well as the interruption of suppliesof essential commodities such as petroleum products which may threaten the veryexistence of a country (Case 72/83 Campus Oil v Minister for Industry and Energy[1984] ECR 2727, paragraph 34). The concept could equally well encompasssituations in which public access to particular documents could obstruct theattempts of authorities to prevent criminal activities, as the applicant has argued.

122.

    Mr Elsen's note (see above, paragraph 15) demonstrates that most of thedocuments to which access was refused were concerned only with negotiations onthe adoption of the Europol Convention, in particular the proposals of thePresidency and of other delegations with regard to those negotiations, and not withoperational matters of Europol itself. Thus, in the absence of any explanation onthe part of the Council as to why the disclosure of these documents would in factbe liable to prejudice a particular aspect of public security, it was not possible forthe applicant to know the reasons for the adoption of the measures and thereforeto defend its interests. It follows that it is also impossible for the Court to assesswhy the documents to which access was refused fall within the exception basedupon the protection of the public interest (public security) and not within theexception based upon the protection of the confidentiality of the Council'sproceedings.

123.

    Nor can the Council claim that, in this instance, it was unable to explain why theexception applied without undermining the essential purpose of the exception, giventhe very nature of the interest to be protected and the mandatory character of theexception. In fact, Mr Elsen's note clearly shows that it was possible to give anindication of the reasons why certain documents could not be disclosed to theapplicant without at the same time disclosing their contents.

124.

    Finally, so far as concerns the exception in favour of the protection of theconfidentiality of its proceedings, the Council did not specifically indicate in thecontested decision that all of the documents included in the applicant's requestwere covered by the exception based upon the protection of the public interest (see

paragraph 119, above). The applicant could not therefore rule out the possibilitythat access to some of the documents in question was being refused because theywere covered only by the exception based upon the protection of the confidentialityof its proceedings.

125.

    The terms of the contested decision do not, however, permit the applicant and,therefore, the Court to check whether the Council has complied with its duty tocarry out a genuine balancing of the interests concerned as the application ofArticle 4(2) of Decision 93/731 requires. In fact, the contested decision mentionsonly the fact that the requested documents related to proceedings of the Council,including the views expressed by members of the Council, without saying whetherit had made any comparative analysis which sought to balance, on the one hand,the interest of the citizens seeking the information and, on the other hand, thecriteria for confidentiality of the proceedings of the Council (see Case T-194/94Carvel and Guardian Newspapers, cited above, paragraph 74).

126.

    Moreover, the first reply from the Council — sent to the applicant in Frenchalthough the applicant had written the initial request in German — confined itselfto citing the provisions of Article 4(1) of Decision 93/731, in support of its view thatthe documents were subject to 'the principle of confidentiality‘. It did nottherefore permit the applicant or the Court to confirm that the Council hadgenuinely balanced the interests involved at the stage of its consideration of theapplicant's first request.

127.

    It follows from all of the foregoing that the contested decision does not comply withthe requirements for reasoning as laid down in Article 190 of the Treaty and musttherefore be annulled without there being any need to consider the other groundsraised by the applicant or to look at the contents of the documents themselves.

The request of the Netherlands Government that the Court of First Instance invitethe Court of Justice to produce a note drafted by its services

128.

    The Netherlands Government requests that the Court of First Instance invite theCourt of Justice to produce a note drafted by the Research and Documentationservice of the Court for the purposes of that Court's judgment of 30 April 1996 inCase C-58/94 Netherlands v Council [1996] ECR I-2169.

129.

    As the present judgment is not based upon that note, there is no need to rule onthis request.

Publication of the defence on the Internet

Arguments of the parties

130.

    As indicated in paragraph 22 above, by letter received on 3 April 1996 the Councildrew the attention of the Court to the fact that certain pertinent documents,including the Council's defence, had been published on the Internet. It considersthat the applicant's conduct was prejudicial to the proper course of the procedure.The Council laid particular stress on the fact that the text of the defence had beenedited by the applicant before it was placed on the Internet. Furthermore, thenames and contact details of the Council's Agents in the case were given and thepublic encouraged to send their comments on the case to those Agents. TheCouncil requested the Court to take any measures which might be appropriate inorder to avoid further such action on the part of the applicant.

131.

    By letter received on 3 May 1996, the applicant's lawyers explained that they hadplayed no role in the placing of the defence and other documents concerning thecase on the Internet. They had no knowledge of those facts before receiving theletter from the Registry of the Court of First Instance. They had immediately askedthe applicant to remove all the documents from the Internet, and informed it thatthey would no longer be able to represent it if that was not done.

132.

    In its observations received on 24 May 1996, the applicant confirmed that it hadplaced the documents on the Internet without informing its lawyers. It explainedthat the editing of the defence had been carried out for purely practical reasonsand that its intention was not to alter its contents or weaken the Council's case. Itsimply wanted to shorten the defence by not reproducing certain passages in viewof the time required to put the defence on the Internet. It had no intention ofputting pressure on the Council and added that the names and contact details ofthe Council's Agents were included simply because they knew about the case, notto encourage the public to contact them directly as individuals.

133.

    The applicant undertook to refrain from placing on the Internet or in any otherway making available to the public any further documents exchanged between theparties in the case. It would thenceforth restrict itself to normal media reports onthe case. The applicant further indicated that it had taken the decision to have thedefence withdrawn from the Internet. However, the document had been placed onthe Internet by an independent organisation, Grävande Journalister (an associationof Swedish investigative reporters and editors), which refused to withdraw it. UnderSwedish law the applicant had no legal means of forcing that association towithdraw the document and the latter was therefore responsible for keeping thedefence on the Internet.

134.

    By letter received on 28 May 1996, the Swedish Government explained that theLegal Director at the Ministry of Justice had received a copy of the defence fromthe applicant and the Legal Director had subsequently released a copy to ajournalist without any objection on the applicant's part. In doing so, the LegalDirector had taken into account the fact that the applicant had already publisheda detailed report on the main elements of the defence and had given the names of

the representatives of the Council concerned. Another factor in that decision wasthat the document had not been transmitted to the Swedish Government by aCommunity institution, but by a private individual who had the right to dispose ofthe document and had already demonstrated his willingness to disseminate it. TheMinistry was in no way involved in the publication of the defence on the Internetand the newspaper's action in that respect was regarded as a provocation.

Findings of the Court

135.

    Under the rules which govern procedure in cases before the Court of FirstInstance, parties are entitled to protection against the misuse of pleadings andevidence. Thus, in accordance with the third subparagraph of Article 5(3) of theInstructions to the Registrar of 3 March 1994 (OJ 1994 L 78, p. 32), no third party,private or public, may have access to the case-file or to the procedural documentswithout the express authorisation of the President, after the parties have beenheard. Moreover, in accordance with Article 116(2) of the Rules of Procedure, thePresident may exclude secret or confidential documents from those furnished to anintervener in a case.

136.

    These provisions reflect a general principle in the due administration of justiceaccording to which parties have the right to defend their interests free from allexternal influences and particularly from influences on the part of members of thepublic.

137.

    It follows that a party who is granted access to the procedural documents of otherparties is entitled to use those documents only for the purpose of pursuing his owncase and for no other purpose, including that of inciting criticism on the part of thepublic in relation to arguments raised by other parties in the case.

138.

    In the present case, it is clear that the actions of the applicant in publishing anedited version of the defence on the Internet in conjunction with an invitation tothe public to send their comments to the Agents of the Council and in providingthe telephone and telefax numbers of those Agents, had as their purpose to bringpressure to bear upon the Council and to provoke public criticism of the Agentsof the institution in the performance of their duties.

139.

    These actions on the part of the applicant involved an abuse of procedure whichwill be taken into account in awarding costs (see below, paragraph 140), havingregard, in particular, to the fact that this incident led to a suspension of theproceedings and made it necessary for the parties in the case to lodge additionalsubmissions in this respect.

Costs

140.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. In this case the applicant asked that the Council be ordered to pay thecosts. However, under Article 87(3) of the Rules, the Court may, where thecircumstances are exceptional, order that the costs be shared or that each partybear its own costs. In view of the abuse of procedure found to have beencommitted by the applicant, the Council will be ordered to pay only two-thirds ofthe applicant's costs.

141.

    Pursuant to Article 87(4) of the Rules of Procedure, the interveners will be orderedto pay their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber, ExtendedComposition)

hereby:

1.    Annuls the Council's decision of 6 July 1995 refusing the applicant accessto certain documents relating to the European Police Office (Europol);

2.    Orders the Council to pay two-thirds of the applicant's costs as well as itsown costs;

3.    Orders the Kingdom of Denmark, the French Republic, the Kingdom of theNetherlands, the Kingdom of Sweden and the United Kingdom of GreatBritain and Northern Ireland to bear their own costs.

LenaertsLindh Azizi Cooke Jaeger

Delivered in open court in Luxembourg on 17 June 1998.

H. Jung

P. Lindh

Registrar

President

1: Language of the case: English.

ECR