C-58/94

NETHERLANDS v COUNCIL

OPINION OF ADVOCATE GENERAL TESAURO delivered on 28 November 1995

1. By this action, the Kingdom of the Neth­ 2. For the sake of a better understanding of erlands seeks the annulment of Council the parties' arguments, it is worth briefly Decision 93/731/EC of 20 December calling to mind how it came about that the 1993 on public access to Council docu­ measures at issue were adopted. ments, 1 Article 22 of Council Decision 93/662/EC of 6 December 1993 adopting the Council's Rules of Procedure 2 and act 93/730/EC, entitled 'Code of conduct, of 6 December 1993, concerning public access to Council and Commission documents' 3 (hereinafter 'the Code of Conduct'), adopted jointly by the two institutions, in so Their origin is Declaration 17 on the right of far as it has any legal effects. access to information, annexed to the Final Act of the Inter-Governmental Conference which adopted the Treaty on European 4 Union. According to that declaration, 'The Conference considers that openness of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions.'

In support of its claim, the Netherlands Government argues that the Council has committed an abuse of power in that it based the rules on citizens' means of access to doc­ uments in its possession on Article 151 of the EC Treaty, which authorizes it to adopt its Rules of Procedure. In the applicant's With this in mind, the European Council opinion, this question cannot be reduced to a meeting in Birmingham on 16 October mere question of the organization of the 1992 called upon the Member States' Foreign Council's internal operation. Ministers to suggest ways of opening up the work of the Community's institutions, including the possibility of some open * Original language: Italian. 1 — OJ 1993 L 340, p. 43. 2 — OJ 1993 L 304, p. 1. 3 — OJ 1993 L 340, p. 41. 4 — OJ 1992 C 191, p. 101.

The European Council meeting in Copen­ hagen on 22 June 1993 invited the Council and the Commission to continue their work based on the principle of citizens' having the Next, on 20 December 1993, the Commis­ fullest possible access to information, and set sion adopted Decision 93/731 / EC pursuant to Article 151(3) of the EC Treaty and the derived legal basis of Article 22 of its new 5 — The Birmingham Declaration —A Community close to its Rules of Procedure. That decision essentially citizens — is set out in Bull. EC 10-1992, p. 9, point 1.8. reproduces, with a number of additions, the 6 — See Bull. EC 12-1992, p. 10, point 1.5. 7 — COM(93) 191 final, 'Public access to the institutions' docu­ ments', OJ 1993 C 156, p. 5. 8 — COM(93) 258 final, 'Openness in the Community', OJ 9 — See Bull. EC 6-1993, p. 15, point 1.22. 1993 C 166, p. 4.

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11 — For the sake of completeness, it is worth pointing out that 10 — I note that the Netherlands delegation voted against both under paragraphs 2 and 4 of Article 7, if the Council fails to the Code of Conduct and the two Council decisions, for reply to an application or a confirmatory application within the same reasons for which the Netherlands Government is a month of submission, this is to be deemed to constitute now claiming that they should be annulled. refusal.

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OPINION OF MR TESAURO — CASE C-58/94

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NETHERLANDS v COUNCIL

different issue of the competence vested in an agreement between the Council and the institution to adopt a particular measure. Commission on common guidelines for the policy of public access to documents. By that act, the two institutions simply undertook subsequendy to implement the principles established thereby, each acting on its own account. In the final analysis, since openness of decision-making processes constitutes an innate feature of any democratic system and the right to information, including infor­ mation in the hands of the public authorities, is a fundamental right of the individual, the Netherlands Government — associating itself with the European Parliament's obser­ In the alternative, in the event that the Court vations on this subject in its statement in should take a different view of that act, the intervention — accordingly considers that applicant claims that it should be annulled determining the procedures, conditions and for infringement of essential procedural limits for public access to documents of the requirements inasmuch as it does not refer to Community institutions cannot be left to the the legal basis pursuant to which it was discretion of each institution, but must be a adopted. In this connection, the Netherlands matter for the normal 'legislative' processes Government argues that it is certain that nei­ provided for in the Treaty and should be ther Article 151 nor Article 162 — as the accompanied by the necessary guarantees as Council contends — could be regarded as to the effectiveness of the relevant right. proper legal bases for the Code of Conduct, From this perspective, the amendments made in view of the fact that it lays down rules to the working method and organization of which go well beyond the questions inherent the Council, that is, to its Rules of Pro­ in the internal organization of the Council or cedure, in connection with the exercise of the forms of collaboration between the Council right of access should have been only a (pos­ and the Commission. sible) consequence of the adoption of such general rules.

9. In response to the Netherlands Govern­ Once it was decided that the rule of confi­ ment's arguments, the Council contends first dentiality was no longer to apply to all doc­ that, in the absence of Treaty provisions on uments, it was essential to establish the prin­ the publicity of decision-making processes, ciples for distinguishing between documents the various institutions should be empow­ which could be brought to the knowledge of ered to set their own rules independently, as third parties and those which, in contrast, in fact each of them have been since the ori­ had to remain secret, together with the actual gins of the Community. That power has, in detailed rules on access. The basic criterion fact, never been challenged. — the Council observes — was specially laid down by Article 22 of the new Rules of Pro­ cedure, which provides that public access is allowed only to documents 'disclosure of which is without serious or prejudicial con­ sequences', and subsequently elaborated on by Decision 93/731/EC, which specified the conditions and limits of access, the proce­ dures for applying for access and the result­ ant obligations on the institution. In the Council's contention, to accept the Nether­ As far as it itself is concerned, the Council lands Government's argument would have observes that its Rules of Procedure have the paradoxical outcome of denying the always contained provisions relating to the Council competence to adopt any measure publicity of its proceedings and documents, relating to public access to its work other since this matter is closely connected with than the one imposing secrecy, which had the detailed rules on the internal functioning never been contested in the past. of the institution, with the conduct of its procedures and, in the final analysis, with the actual effectiveness of the decision-making process. In this connection, it stresses that the nature and content of decisions may vary depending on the public access which is given to the proceedings accompanying their adoption and to the documents reflecting the progress of those proceedings. Until the amendment of 6 December 1993, the general rule laid down by the Rules of Procedure in this sphere was that documentation relating to the proceedings of the Council was secret 10. The Council also denies that the effect of unless the Council decided otherwise by a the rules at issue is to create a general right majority of its members. Those rules were of access, which is mentioned neither by the changed in view of the policy of openness Code of Conduct nor by Decision initiated following the signature of the 93/731/EC. As far as the Code of Conduct is Treaty on European Union, but that does concerned, it merely lays down the principle not alter the fact that the subject-matter of that 'The public will have the widest possible the rules, in so far as they relate to the degree access to documents'. Consequently, the aim of public access having to characterize of the measures was to lay down the proce­ Council deliberations, still falls within the dures necessary in order to secure greater institution's power to organize itself. openness for the work of the Council and

11. As for the alleged breach of the principle of institutional balance, the Council consid­ ers that it was under no obligation to associ­ ate the Parliament with the adoption of the contested acts inasmuch as each institution's independence in organizing its internal func­ It is observed first that the Council itself has tioning cannot be contested. In that connec­ pointed to the link between the rules on tion, the fact that the Code of Code was access and the manner in which its work is agreed between the Commission and the performed, in particular, to the potential Council is due to the fact that their proceed­ effect of greater public access on its deliber­ ings, unlike parliamentary proceedings, were ations and hence also on its deliberations of a formerly subject to secrecy. This was why it 'legislative' character; secondly, whilst it is true that the arguments put forward by the Parliament differ in part from those 12 — Case C-69/89 Nakajima v Council [1991] ECR 1-2069, deployed by the applicant, there can be no paragraphs 49 and 50. doubt that the Parliament's statement in 13 — Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 74 et seq. intervention is, in accordance with Article

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13. Turning to the merits, I shall say straight away that, although I agree to a large extent with the general approach of the Nether­ lands Government with regard to citizens' right to information and access to documents held by the public authorities, I do not con­ sider that the arguments put forward are capable of resulting in a declaration that the acts at issue in this case are invalid. I shall therefore endeavour to explain why I take this view, after setting out a number of nec­ It is clear from a comparative examination of essary (brief) preliminary observations. the legislation of the Member States of the Community that publicity is inherent in any democratic system. All the national legal sys­ tems recognize that citizens have a broad right to be informed, although the rank of the legislative source conferring and govern­ ing that right varies, as do the limits to that right. In the first place, there is a general 14. First, it is scarcely necessary to point out right to have access to documents of parlia­ that openness of the public authorities' mentary institutions, in particular to those action is closely linked with the democratic connected with the exercise of their primary nature of the institutions inasmuch as it function as legislators; indeed, it is normally tends to secure better knowledge on the part provided that those institutions' documents must be published. Above all from the 1960s onwards, a right has been recognized to an 14 — Case C-155/91 Commission v Council (directive on waste) increasing degree for citizens to have cogni­ [1993] ECR 1-939, paragraphs 22, 23 and 24. In that case, in addition to supporting the Commission's application for zance of papers held by the Government and the annulment of a directive on the ground that it had been adopted on the wrong legal basis, the Parliament also the administration, with the very aim of tak­ claimed that an article of the directive was incompatible ing a more open approach to reciprocal rela­ with the Treaty and sought its annulment as well, even though that issue had not teen raised by the Commission. tions and to divest the administration of its

15 — See the Commission's document, 'Public access to infor- mation', annexed to the communication of 5 May 1993 (COM(93) 191 final), cited in footnote 7; see also D . Curtin and H. Meiiers, 'The principle of open government in Schengen and tne European Union: democratic retro- gression?', in Common Market Law Review, 1995, p. 391 et The right of access is normally subject to seq. expressly listed exceptions attributable to the 16 — This is the case in Belgium (Article 32 of the consolidated version of the Constitution, dated 17 February 1994; that

As far as Austria is concerned, following the revision of the Constitution in 1987, Article 20 of the Constitution puts the public author- ities under a duty to make information in their possession accessible. That provision does not create an individual right on the part of citizens, but merely places the ordinary legislature, at federal level and at the level of the individual Länder, under a duty to formulate such a right, which they did by means of a series of laws passed between 1987 and

situations). informing action by public administrative Lastly, in the countries in which there are no rules govern- authorities and the recognition that citizens' ing the right of access generally, such a right is nevertheless right to have access to information in the provided for by numerous specific laws in relation to par- ticular matters. possession of the public authorities is an

16. The fact that the existence of informed public opinion constitutes an essential part of any democratic system has also been rec­ ognized in various resolutions and recom­ mendations adopted by the Parliamentary In the Council of Europe documents which I Assembly and the Committee of Ministers of have mentioned, a link is made between the the Council of Europe. Mention may be right to access to documents in the posses­ made in this connection, for example, of sion of the public authorities and the right to Recommendation No 854 (1979) of the freedom of expression and to receive and 17 Assembly of 1 February 1979, which calls impart information enshrined in Article for public access to be guaranteed to admin­ 10 of the European Convention for the Pro­ istrative documents — subject to the inevita­ tection of Human Rights and Fundamental ble exceptions — and, more specifically, for Freedoms. That right, as the European Par­ there to be a right to seek and receive infor­ liament rightly points out, constitutes a cor­ mation from government agencies and ollary of the freedom to seek, receive and departments. Another document of disseminate information and ideas of every undoubted importance is Recommendation kind guaranteed by Article 19 of the Interna­ No R (81) 19 of the Committee of Ministers tional Covenant on Civil and Political 18 of 25 November 1981, in which, 'consider­ Rights, signed at New York on 19 December ing the importance for the public in a demo­ 1966. cratic society of adequate information on public issues', Member States are called upon to legislate for an automatic right of access to information held by the public authorities, without the person concerned having to specify the reasons for his request. Lastly, I would mention the 'Declaration on media in Consequently, we are witnessing, also on the level of the law of international conventions as in the legislation of the Member States, a progressive, increasingly broader affirmation 17 — Council of Europe, Parliamentary Assembly, Texts adopted, 30th Ordinary Session, Part 3, January-February 1979. of the individual's right of access to official 18 — Council of Europe, Collection of recommendations, resolu­ information, either as a development of tions and declarations of the Council of Ministers relating to human rights, 1949-1987, Strasbourg, 1989, p. 96. rights earlier recognized as being vested in

18. Can it be said, as the Netherlands Gov­ ernment argues, that Decision 93/731/EC does in fact have the aim of laying down 17. So far there are no general rules in the such general rules on public access to official Community legal order on public access to documents or at least to those held by the documents in the possession of the institu­ Council, and therefore creates a possible per­ tions. Only some specific rules, requiring sonal right of individuals to obtain the infor­ publicity or secrecy for particular acts or mation they seek? information, are laid down by the Treaty or secondary legislation. For instance, there is Article 191(2) of the EC Treaty, which pro­ vides for the publication of Council and Commission regulations and of directives addressed to all the Member States and makes their entry into force conditional on such publication. Again, Article 156 of the EC Treaty and the corresponding provisions 19 of the ECSC and EAEC Treaties require I do not consider that this is the purpose to the Commission annually to publish a gen­ be attributed to the act in question. Both the eral report on the activities of the Commu­ form and content of the decision show that, nity. In contrast, Articles 24 to 27 of the in the final analysis, it sets out to formalize EAEC Treaty lay down rules on the secrecy and make public the practice followed by the of information acquired by the Community Council when it examines applications for institutions as a result of carrying out access to documents, by making the changes nuclear research programmes with a view to necessary in order to make its work genu­ protecting Member States' defence interests. inely accessible to the public. In pursuance In order to protect, in particular, undertak­ of the greater openness of Community ings' commercial and industrial secrecy, the action advocated by Declaration 17 annexed Commission and its officials and other ser­ to the Union Treaty, it puts interested per­ vants are debarred from disclosing infor­ sons in a position to know precisely what mation obtained during the course of their

In addition, one cannot fail to stress that, at least as regards the exercise of the legislative 19. The Council is therefore right when it function, publicity of parliamentary pro­ states that the contested provisions consti­ ceedings constitutes a principle common to tute measures for the organization of its the constitutional traditions of the Member internal operation and do not, in themselves, States. create any individual right to information. Instead, the basis for such a right should be sought in the democratic principle, which constitutes one of the cornerstones of the Community edifice, as enshrined now in the 21 Preamble to the Maastricht Treaty and 22 Article F of the Common Provisions. In the light of the changes which have taken 20. The question whether it is possible for place in the legislation of the Member States, interested parties to rely on a failure to com­ the right of access to official documents now ply with the provisions of Decision constitutes part of that principle. It is the 93/731/EC takes on quite a different com­ essential precondition for effective supervi­ plexion once it is acknowledged that the act sion by public opinion of the operations of in question was adopted in the exercise of the public authorities. Hence it is the demo­ the power of self-regulation vested in every cratic principle and the content which it has institution. The Court has already made it progressively assumed in the various national clear — and this is not contested by the systems which requires access to documents Netherlands Government — that that possi­ no more to be allowed only to the addressee bility should be allowed whenever the inter­ of a measure of the public authority: it is in nal provision is intended also to protect indi­ those terms — that is to say, as a requirement 24 viduals. This will be the case, in particular, connected with compliance with the princi­ where a particular measure intends to lay ple audi alteram partem — that the right of down the rules for the exercise of an activity access has been recognized and protected by the Community legal order, in particular in

On those bases, therefore, it is quite possible for interested parties to require the Council to comply with the rules which it has imposed upon itself for the purpose of exam­ ining applications for access to documents: I consider that this is the very significance of 26 the fact that those rules may be relied upon, the judgment in Carvel, in which the however, does not mean in any way that Court of First Instance was called upon to they are the basis for the citizens' right of rule on this question for the first time. In information. That right, as I have already that case, the Court of First Instance held mentioned, existed before the Council's new that it was unlawful for the Council to refuse Rules of Procedure and Decision 93/731/EC access to certain documents pursuant to were adopted. Accordingly, the contested Article 4(2) of Decision 93/731/EC, that is to acts are confined to organizing the operation say, by claiming that this was necessary in of the institution in the light of that right; order to maintain the secrecy of its delibera­ moreover, their scope could not have been tions, in so far as it did not appear that the otherwise, in that the very legal basis selected institution had genuinely balanced the inter­ for their adoption shows that this, and no ests at stake in the particular case. It follows, other, was the objective pursued. first, that public access was recognized as being the guiding principle for action by the Community institutions: only specific, clearly identified interests may cause the cit­ izens' right of information to be sacrificed. Secondly, it was clear to the Court of First Instance that the content and limits of that right are not defined by Decision 21. The above also implies that, in assessing 93/731/EC: this is the only way in which the the legality of a decision refusing access to a annulment of the Council's refusal of the given document, the Community judicature application for access in that case, which will, in any event, have to determine whether refusal was moreover to be regarded as being in accordance with the provisions of Article 4(2), can be understood. 25 — See, for example, Case 148/73 Louwage [1974] ECR 81, paragraph 12, and Joined Cases 181/86 to 184/86 Del Plato [1987] ECR 4991, paragraph 10; this principle was ako stressed by the Court of First Instance in Case T-63/89 Latham [1991] ECR II-19, paragraph 25. 26 — Case T-194/94 Carvel [1995] ECR II-2765.

22. In conclusion, I agree with the Nether­ Conduct — to use the formula employed by lands Government as to the desirability or the Court — cannot be the subject of an perhaps even the need to lay down by 'legis­ action for annulment. lative' means general rules governing public access to documents held by all the Commu­ nity institutions, which, while complying with citizens' right of information, precisely define the procedures and limits, possibly even in relation to the various functions per­ formed by the institutions. This having been said, however, in the absence of such rules and subject, of course, to the supervision of the Community judicature over decisions in which access to documents is refused in indi­ 24. A final word on costs. If the solution vidual cases, it cannot be denied that the that I propose were adopted, the Kingdom institutions are authorized, pursuant to the of the Netherlands would normally have to power of self-regulation vested in each of be ordered to pay the costs. Article 69(2) of them, to lay down rules independently in the Court's Rules of Procedure provides this sphere governing the aspects more that, if they have been applied for in the directly concerned with the procedures and unsuccessful party's pleadings, as they were conditions for examining applications for here, 'the unsuccessful party shall be ordered access. to pay the costs'. In view, however, of the fundamental importance of the question raised in this case — namely, that of the democratic development of the Community — and of the fact that, even though I have rejected the specific criticisms underlying these proceedings, I cannot but agree with 23. Lastly, as regards the Code of Conduct, the general approach taken by the Nether­ it merely lays down the common principles lands Government with regard to the right and conditions on which the Commission of information, in particular as respects the and the Council intended to base themselves need for general rules in this area, I propose in laying down rules on access to documents; that the Court exceptionally order the par­ at the same time, it entrusted the two institu­ ties to bear their own costs. This will also tions with the task of implementing them by give a signal to the Community institutions means of regulations of their own. It is with regard to the urgency of the tasks therefore an agreement essentially of a policy which they are called on to carry out in this nature, as the Netherlands Government itself sphere. argued in its main claim, and is not apt in any way to have legal effects.

— order each of the parties, including the interveners, to bear their own costs.

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