C-353/99

COUNCIL v HAUTALA

O P I N I O N O F ADVOCATE GENERAL LÉGER delivered on 10 July 2 0 0 1 1

1. This appeal was brought by the Council 3. The Council replied on 10 March 1997 of the European Union against the judg- stating that one of the eight criteria taken ment of the Court of First Instance of the into account in arms exports decisions European Communities of 19 July 1999 in concerned respect for human rights in the Case T-14/98, which annulled the Council country of final destination. It added that Decision of 4 November 1997 refusing at its meeting on 14-15 November 1996 Heidi Hautala, a Member of the European the Council's Political Committee approved Parliament, access to the report of the a report from the Working Group on Working Group on Conventional Arms Conventional Arms Exports, with a view Exports. 2 to further enhancing the consistent imple- mentation of the common criteria.

6. By letter of 25 July 1997, the General Secretariat of the Council refused access to the report under Article 4(1) of Decision 10. On 13 January 1998 Mrs Hautala 93/731/EC, 6 stating that it contained brought an action before the Court of First 'highly sensitive information, disclosure of Instance for annulment of the Council's which would undermine the public interest decision refusing access to the report. as regards public security'.

11. The terms of the contested judgment 7. By letter of 1 September 1997 the appli- are set out below, following the description cant made a confirmatory application, in of the legal background to the present case. accordance with Article 7(1) of Decision 93/731.

8. The confirmatory application was con- I — Legal background sidered by the Information Working Party of the Committee of Permanent Represen- tatives and by the members of the Council, which considered by a simple majority that a negative reply should be given. Four delegations were in favour of releasing the 12. The Final Act of the Treaty on Eur- document. opean Union signed at Maastricht on 7 February 1992 contains a Declaration

6 — Council Decision of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43). 7 — Hereinafter 'the contested decision'.

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8 — OJ 1992 C 191, p. 95, 101, 'Declaration No 17'. 9 —Bull. EC 10-1992, p. 9. 12 —OJ 1993 C 166, p. 4. 10—Bull. EC 12-1992, p. 7. 13 — Bull. EC 6-1993, p. 16, point 1.22. 11 — OJ 1993 C 156, p. 5. 14 — OJ 1993 L 340, p. 41, hereinafter 'the Code of Conduct'.

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18. The Code of Conduct sets out the They may also refuse access in order to following general principle: protect the institution's interest in the confidentiality of its proceedings.'

'The public will have the widest possible access to documents held by the Commis- sion and the Council.' 21. The Code of Conduct further provides:

19. 'Document' is defined as 'any written 'The Commission and the Council will text, whatever its medium, which contains severally take steps to implement these existing data and is held by the Council or principles before 1 January 1994.' the Commission'.

monetary stability, court proceedings, 26. The Court considered in turn the three inspections and investigations), arguments put forward by the applicant in support of her first plea. It sought to determine 'first, whether the confirmatory application was given adequate considera- tion by the Council; second, whether access ...'. to the report could be refused by reference to the public interest concerning interna- tional relations; and third, whether the Council was obliged to consider whether it could grant partial access, authorising disclosure of the parts of the document not covered by the exception on grounds of protection of the public interest'. 16 I I— The contested judgment

76 It is thus for the Court to verify whether the Council was obliged to 80 Declaration No 17 recommended that consider whether partial access could the Commission should submit to the be granted. Since this is a question of Council no later than 1993 a report on law, review by the Court is not limited. measures designed to improve public access to the information available to the institutions. That commitment was restated at the European Council in Copenhagen on 22 June 1993, which invited the Council and the Commis- sion to "continue their work based on the principle of citizens' having the fullest possible access to information". 77 Decision 93/731 is a measure of inter- nal organisation adopted by the Coun- cil on the basis of Article 151(3) of the EC Treaty. In the absence of specific Community legislation, the Council determines the conditions for dealing 81 In the preamble to the Code of Con- with requests for access to its docu- duct, the Council and the Commission ments (see, to that effect, Case C-58/94 refer expressly to Declaration No 17 Netherlands v Council [1996] ECR and the conclusions of the European I-2169, paragraphs 37 and 38). Conse- Council in Copenhagen as the basis for quently, if the Council so wished, it their initiative. The Code of Conduct could decide to grant partial access to states the general principle that the its documents, under a new policy. public will have the widest possible access to documents.

82 Furthermore, the Court of Justice 78 Decision 93/731 does not expressly stressed in Netherlands v Council, require the Council to consider whe- paragraph 35, the importance of the ther partial access to documents may public's right of access to documents be granted. Nor, as the Council held by public authorities. The Court accepted at the hearing, does it of Justice noted that Declaration expressly prohibit such a possibility. No 17 links that right with "the demo-

"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 Preamble to the Maastricht Treaty and Article F [of the Treaty on European Union, now, 85 Furthermore, the principle of propor- after amendment, Article 6 EU] of the tionality requires that "derogations Common Provisions." remain within the limits of what is appropriate and necessary for achiev- ing the aim in view" (Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] 83 The Court of First Instance recently ECR 1651, paragraph 38). In the held in Svenska Journalistförbundet, present case, the aim pursued by the paragraph 66, referring to Netherlands Council in refusing access to the report v Council, that: was, according to the reasons stated in the contested decision, to "protect the public interest with regard to interna- tional relations". Such an aim may be achieved even if the Council does no "The objective of Decision 93/731 is to more than remove, after examination, give effect to the principle of the largest the passages in the report which might possible access for citizens to informa- harm international relations. tion with a view to strengthening the democratic character of the institutions and the trust of the public in the administration."

84 Next, it should be noted that where a 86 In that connection, the principle of general principle is established and proportionality would allow the Coun- exceptions to that principle are then cil, in particular cases where the laid down, the exceptions should be volume of the document or the pas- construed and applied strictly, in a sages to be removed would give rise to manner which does not defeat the an unreasonable amount of adminis- application of the general rule (see, to trative work, to balance the interest in

88 As appears from paragraph 75 above, the Council did not make such an 30. The Council considers that the Court examination, since it considers that has categorised as being a right to informa- the principle of access to documents tion what is merely a right of access to applies only to documents as such and public documents. The text of Decision not to the information contained in 93/731 refers only to Council documents in them. Consequently, the contested their existing form and not to the items of decision is vitiated by an error of law information which they contain. The Coun- and must therefore be annulled.' cil is therefore required merely to consider whether the document requested, in its existing form and without any alteration, can be released or whether it falls under one of the exceptions laid down in Article 4 of Decision 93/731. The decision does not, however, require it to consider whether partial access may be granted to docu- III— Pleas in law and arguments of the ments. It does not oblige it to create a new parties document comprising only items of infor- mation which may be disclosed, as the contested judgment appears, wrongly, to require. The Council observes that the 28. The Council is seeking to have the approach taken by the Court is likely to judgment of the Court of First Instance set create a considerable administrative burden aside and is supported by the Kingdom of and significant practical difficulties since it Spain, intervener in the appeal. It claims would be necessary to determine which that the Court made an error of law by parts of each document could be released.

32. As regards the principle of proportion- ality, to which the Court of First Instance refers in the contested judgment, the Coun- cil considers that it cannot be applied in 34. Mrs Hautala claims that the appeal order to determine the validity of a restric- should be dismissed. The United Kingdom tion on a right protected under Community of Great Britain and Northern Ireland and law. The decision aims not to confer an the Kingdom of Denmark, interveners in absolute right of access to Council docu- the appeal, and the Kingdom of Sweden ments on members of the public, but to and the Republic of Finland, interveners at arrange for access to be granted on certain first instance and present at the appeal conditions. In the absence of a general stage, support that claim. principle of Community law conferring an absolute right of access to Council docu- ments on members of the public, and in view of the adoption of Article 255 EC as a result of the Treaty of Amsterdam, which confirms the absence of a pre-existing principle in this matter, the principle of proportionality cannot be interpreted as a 35. In the view of Mrs Hautala and the restriction on a right protected under Member States associated with her defence, Community law. In addition, by ensuring the right of partial access is required by by means of the exceptions laid down in both the wording and the context of Article 4 that disclosure of documents will Decision 93/731. They add that the latter not harm certain interests in need of should be interpreted and applied in accor- protection, Decision 93/731 already applies dance with the general principles of Com- the principle of proportionality. That prin- munity law, which include the right to ciple is thus fully taken into consideration. information. Entitlement to partial access

36. Mrs Hautala contends that, like other principles of Community law, the right of access to information was incorporated into the Treaty by Article 255 EC. The principle of proportionality therefore serves 39. In Netherlands v Council the Kingdom in this case to limit that right in order to of the Netherlands sought annulment of safeguard other objectives deserving of Decision 93/731 on the ground that the protection. It requires, however, that excep- Council wrongly relied as its legal basis on tions should not exceed the limits of what is Article 151(3) of the Treaty and Article 22 appropriate and necessary for achieving the of its Rules of Procedure, both of which are aim in view. concerned solely with the Council's internal organisation. The Kingdom of the Nether- lands argued that Decision 93/731 went far beyond the ambit of the rules on the internal organisation and management of the Council and constituted an act 37. Before giving my opinion on the above- expressly designed to have legal effects mentioned pleas and arguments I think it is vis-à-vis citizens. The Netherlands Govern- appropriate to recall the rules of Commu- ment contended that the Council had nity law governing the interpretation of categorised as a matter of internal organi- Decision 93/731. sation something which in fact constituted a fundamental right, namely the public's right of access to information, the rules governing which must be accompanied by the necessary safeguards.

IV — The rules of Community law gov- erning the interpretation of Decision 93/731

The judgment in Netherlands v Council, which confirms the formal validity of Decision 93/731, does not appear to con- tribute anything substantive to the inter- 41. It thus acknowledged the Council's pretation of the provisions of Decision right to use its power of internal organisa- 93/731 at issue. In that case the Court of tion to introduce a measure of transparency Justice was clearly bound by the subject- into its operation. The absence of Commu- matter of the action, which was confined to nity rules of a general nature governing the question of the appropriate legal basis access to documents undoubtedly justified of Decision 93/731. an institution such as the Council improv- ing its methods of operating, in an effort to achieve transparency, by laying down rules more favourable than those which had so far governed its own practice. 44. The present appeal, however, calls for an interpretation of the contested provi- sions. That can only be done if all the rules of Community law governing the right of access to documents are taken into con- sideration. In Netherlands v Council the Court of Justice noted that the trend 42. Despite its aim, which by reason of the followed by the Community 'discloses a links it has with the very foundations of the progressive affirmation of individuals' right European Community, clearly goes beyond of access to documents held by public the mere internal organisation of one of the authorities'. 18 Community institutions, Decision 93/731 was held to be based on the appropriate Treaty provision. The Court of Justice was able to regard the Treaty provision enabling the Council to adopt its rules of procedure as constituting an adequate legal basis for improving the transparency of its opera- 45. It is clear that the provisions of Deci- tion. sion 93/731 at issue cannot be applied

47. Declaration No 17 is the first tangible act in which the Community acknowledged the importance of a general right of access to information within the Community institutions. The Intergovernmental Con- ference thereby demonstrated its intention to increase the effectiveness of that right. In 50. The process of acknowledging the right noting that transparency of the decision- of access did not end with the adoption of making process enhances the democratic rules of procedure which the institutions nature of the institutions and the confi- laid down for themselves. A new article, dence of the public in the administration, it Article 191a (now Article 255 EC), was emphasised the importance of a right which introduced into the EC Treaty by the Treaty is derived from the most essential political of Amsterdam. Article 255(1) EC provides foundations of the Member States of the that '[a]ny citizen of the Union, and any Community. natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parlia- ment, Council and Commission docu- ments, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3'. In pursuance of those 48. The European Councils held in 1992 in paragraphs, a proposal was submitted for a Birmingham and Edinburgh reaffirmed that regulation of the European Parliament and will to make the Community more open. At of the Council regarding public access to

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European Parliament, Council and Com- also the surest method of involving them in mission documents. 19 the management of public affairs. 22

'Instead, the basis for such a right should be 52. It is important to take into account that sought in the democratic principle, which consistency in the political will of the constitutes one of the cornerstones of the Member States and in the evolution of the Community edifice... . In the light of the scope of Community legislation in that changes which have taken place in the regard. They demonstrate the emergence of legislation of the Member States, the right a right closely related to the foundations of of access to official documents now con- the Community. As Advocate General stitutes part of that principle... . Hence it is Tesauro observed in his Opinion in Nether- the democratic principle and the content lands v Council, the openness of the public which it has progressively assumed in the authorities' action is closely linked with the various national systems which requires democratic nature of the institutions. 21 access to documents no more to be allowed The fact that citizens are aware of what only to the addressee of a measure of the the administration is doing is a guarantee public authority'. 23 that it will operate properly. Supervision by those who confer legitimacy on the public authorities encourages them to be effective 22 — See among many works devoted to this question, Blancher, T., 'Transparence et qualité de la législation', in RTD eur.,, in adhering to their initial will and can 33 (4), Oct.-Dec. 1997, p. 915 et seq.; Bradley, K. St. C , 'La transparence de l'Union européenne: une évidence ou thereby inspire their confidence, which is a un trompe-oeil?' in Cahiers de droit européen, 1999, p. 283 guarantee of public content as well as the et seq.; Curtin, D., and Meijers, H., 'The Principle of Open Government in Schengen and the European Union: Demo- proper functioning of the democratic sys- cratic Retrogression?' in CML Rev., 1995, p. 391 et seq.; Öberg, U., cited above, O'Neill, M., 'The Right of Access tem. At the highest level of that system, to Community-Held Documentation as a General Principle of EC Law', in European Public Law, Vol. 4, Issue 3, providing the public with information is p. 403 et seq.; Ragnemalm, H., 'Démocratie et transpar- ence: sur le droit général d'accès des citoyens de l'Union européenne aux documents détenus par les institutions communautaires', in Scritti in onore di G. F. Mancini, p. 809 et seq.; Timmermans, C , 'Subsidiarity and trans- 19 — Proposal 2000/C 177 E/10 (OJ 2000 C 177 E, p. 70). With parency', in Fordham international Law Journal, Vol. 22, regard to the Amsterdam reform in this field, see in 1999, p. S106 et seq.; Vesterdorf, B., 'Transparency — particular, Öberg, U., 'Public Access to Documents after Not just a Vogue Word', in Fordham International Law the entry into force of the Amsterdam Treaty: Much Ado Journal, 1999, p. 902 et seq. See also as an example of the About Nothing?' in European Integration online Papers opposite view, Davis, R.W., 'Public access to Community (EIoP), Vol. 2, 1998, No 8 (http://eiop.or.at/eiop/texte/ documents: a fundamental human right?', in European 1998-008a.htm). Integration online Papers (EIoP), Vol 3, 1999, No 8 20 — OJ 2000 C 364, p. 1. (http://eiop.or.at/eiop/texte/1999-008a.htm). 21 — Point 14. 23 — Point 19 of the Opinion in Netherlands v Council.

24 — Paragraph 34. See as regards current legislation of the 58. Those national rules, although the Member States on access to documents of the institutions content of their corresponding legal sys- the annex to the Commission communication of 5 May 1993, 'Public access to the institutions' documents' tems are not necessarily the same, demon- [COM(93) 191 final, OJ 1993 C 156, p. 5]. For an updated version of the text, see Commission documents dated 10 August 2000 entitled 'Comparative analysis of the Member States' legislation concerning the access to documents' and 'Overview of Member States' national 26 — Article F(2) of the Treaty on European Union (now, after legislation concerning access to documents' (http:// amendment, Article 6(2) EU), and Article 46(d) EU. www.europa.eu.int/comm/ secretariat_general/sgc/ 27 — See for a recent example of such case-law Case C-274/99 P acc_doc/en/index.htm). Connolly v Commission [2001] ECR I-1611, paragraph 25 — In Ireland a general right for the public to obtain the widest 37. See in particular Puissochet, J.-R, 'La Cour de justice et possible access to documents held by the administration les principes généraux du droit', in Les annonces de la has replaced the former principle under which citizens Seine, 1996, No 69, p. 3 et seq. were entitled to have access only to certain limited 28 — Kingdom of Belgium, Kingdom of Spain, Italian Republic, categories of documents or to documents in the possession Kingdom of the Netherlands, Portuguese Republic, Repub- of the administration dating back more than 30 years lic of Finland and Kingdom of Sweden. (1997 Freedom of Information Act). In the United King- dom, the 2000 Freedom of Information Act recently 29 — Hellenic Republic and Republic of Austria. extended the right of access, which had previously been 30 — Kingdom of Denmark, French Republic, Ireland and the reserved for certain limited categories of information. United Kingdom of Great Britain and Northern Ireland.

32 — For a different interpretation of the case-law of the European Court of Human Rights, see O'Neill, M., cited above. 33 — See in particular Recommendation N o 854 (1979) of the Parliamentary Assembly of the Council of Europe of 60. If one considers the international 1 February 1979 relating to access by the public to instruments concerning protection of government records: Freedom of Information (Council of Europe Parliamentary Assembly, texts adopted, 30th human rights which Member States have ordinary session, 3rd part, from 2 9 January to 2 February 1979) and recommendations of the Committee of Minis- cooperated in or adhered to, their contri- ters of the Council of Europe N o R (81 ) 19 on the access to bution with regard to access to documents information held by public authorities (Council of Europe, Collection of Recommendations, Resolutions and Declara- varies. tions of the Committee of Ministers on Human Rights, 1949-1987, Strasbourg, 1989, p. 96) and N o R (91) 10 on the communication to third parties of personal data held by public bodies (Council of Europe, Committee of Ministers, Recommendation to Member States, 1991, 31 — Opinion in Netherlands v Council, point 15. Strasbourg, 1995).

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36 — Hereinafter 'the 1966 Covenant'. Treaty Series, Vol. 999, p. 171. Article 19(2) provides: '[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice'. This text is very close, as regards freedom to 64. Article 19 of the 1966 United Nations seek information, to Article 19 of the 1948 Universal Declaration on Human Rights. However, unlike the 1966 Covenant on Civil and Political Rights Covenant, the 1948 Universal Declaration is regarded as provides expressly that freedom of expres- having no binding effect on States or direct applicability with regard to individuals. It is primarily a programme (De Vries Reilingh, J., 'L'application des pactes des Nations unies relatifs aux droits de l'homme de 1966', Helbing & Lichtenhahn, Bruylant, 1998, paragraphs 25 and 32). 34 — Draft prepared by the Group of Specialists on Access to 37 — See, for example, Blumenwitz, D., 'Die Meinungs- und Official Information at its 6th meeting (from 27 to Informationsfreiheit nach Art. 19 des IPBPR', in 29 September 2000). M. Nowak, D. Steurer and H. Tretter, Fortschrift im 35 — See draft recommendation contained in Annex III to the Bewußtsein der Grund- und Menschenrechte, Festschrift report of the meeting of September 2000, Strasbourg, für Felix Ermacora, Kehl-Strasbourg-Arlington, Engel 26 January 2001, DH-S-AC (2000)7. Verlag, 1988, p. 71.

67. The Court of Justice ensures compli- ance with fundamental rights. It contri- butes to their recognition and participates in the definition of their content. The general principles of Community law, of which fundamental rights are an integral part, are often derived from international As regards the powers of investigation instruments such as the European Human available to the administration in respect Rights Convention or the 1966 Covenant. of legal persons, for example, the Court of Justice has held that 'there are not incon- siderable divergences between the legal systems of the Member States in regard to the nature and degree of protection affor- ded to business premises against interven- tion by the public authorities' 39 and the 68. Examination of the case-law reveals, European Convention on Human Rights however, that the convergence of the con- did not allow for recognition of a funda- stitutional traditions of the Member States mental right to the inviolability of the may suffice in order to establish the exis- 'home' of a business. 40 This lacuna in the tence of one of those principles without the principal rights under consideration was need to obtain confirmation of its existence not enough to deter the Court of Justice or content by referring to international from recognising the existence of a general rules. 38 principle that individuals must be protected against harmful intervention by the public authorities. The Court held that 'in all the legal systems of the Member States, any intervention by the pubic authorities in the sphere of private activities of any person, 69. Moreover, a general principle of Com- whether natural or legal, must have a legal munity law may be recognised without first basis and be justified on the grounds laid establishing the existence of either consti- down by law, and, consequently, those tutional rules common to the Member systems provide, albeit in different forms, States or rules laid down in international protection against arbitrary or dispropor- instruments in which the Member States tionate intervention. The need for such have cooperated or to which they have protection must [therefore] be recognised acceded. It may suffice that Member States 39 — Joined Cases 46/87 and 227/88 Hoechst [1989] ECR 2859. paragraph 17. 38 — Case 44/79 Hauer [19791 ECR 3727, paragraphs 19 to 22. 40 — Ibid., paragraph 18.

74. It should be remembered that that principle was 'constitutionally' enshrined 72. As we have seen, as a principle and by the adoption of Article 255 EC. Its regardless of the exceptions that may apply content is to be defined in the regulation to to it and the procedure for exercising it, be adopted under Article 255(2) EC, which access to documents for citizens is a right is currently being negotiated, 43 and by the widely shared among the Member States. It future decisions of the Court of Justice. would be paradoxical to say the least to extend the situation in which the Commu- nity institutions, which have legislative powers similar to those of the Member States, are sheltered in the exercise of those powers by a right of access to documents which is ill-defined and restrictive, when 75. The fact remains that that right, which almost all the Member States have elevated 'existed before the Council's new Rules of that right to the level of a principle. Finally, Procedure and Decision 93/731/EC were is it reasonable to accept that the transfer adopted', 44 has now been expressly inte- by Member States of their sovereign rights grated at the highest level of Community law.

41 — Ibid., paragraph 19. 42 — On this aspect of the Court's case-law see Monet, H., 'La 43 — Proposal for a regulation 2000/C 177 E/10, cited above. Communauté européenne et la convention européenne des droits de l'homme' in Revue trimestrielle des droits de 44 — Opinion of Advocate General Tesauro in Netherlands v l'homme, 1994, p. 501 et seq. Council, point 20.

76. That the principle existed before it was tutes a further stage in the process of introduced into the Treaty was evident recognising that principle and establishing from the case-law of the Court of First its ranking within the Community legal Instance, which considers that Declaration order. No 17 and the Code of Conduct enshrine the general principle of giving the public the widest possible access to documents held by the Commission and the Council. 45 It had clearly stated that the objective of Decision 93/731 was to give effect to the principle of the widest possible access for citizens to information with a view to 80. Naturally, the clearly-expressed wish of strengthening the democratic character of the authors of the Charter not to endow it the institutions and the trust of the public with binding legal force should not be in the administration. 46 One must concur overlooked. 48 However, aside from any with that. consideration regarding its legislative scope, the nature of the rights set down in the Charter of Fundamental Rights pre- cludes it from being regarded as a mere list of purely moral principles without any 77. The strength of the principle of access consequences. It should be noted that those to documents derives from the fact that it is values have in common the fact of being a fundamental right. unanimously shared by the Member States, which have chosen to make them more visible by placing them in a charter in order to increase their protection. 49 The Charter has undeniably placed the rights which 78. Advocate General Tesauro termed it 'a form its subject-matter at the highest level fundamental civil right'. 47 Article 42 of the of values common to the Member States. Charter of Fundamental Rights of the European Union provides '[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Com- mission documents'. 81. It is known that the political and moral values of a society are not all to be found in positive law. However, where rights, free- doms and principles are described, as in the Charter, as needing to occupy the highest 79. Classification of the right of access to level of reference values within all the documents as a fundamental right consti- Member States, it would be inexplicable

not to take from it the elements which evidenced by the explanatory note to make it possible to distinguish fundamental Article 42, which states that '[t]he right rights from other rights. guaranteed in this Article is the right guaranteed by Article 255 of the EC Treaty'. It cannot be made more plain that the right contained in Article 255 EC is now clearly described as corresponding to a fundamental right within the meaning of the Charter. 82. The sources of those rights, listed in the preamble to the Charter, are for the most part endowed with binding force within the Member States and the European Union. 50 It is natural for the rules of positive Community law to benefit, for the purposes 85. It is true that, according to the same of their interpretation, from the position of explanatory note, '[i]n accordance with the values with which they correspond in Article 52(2) [of that Charter, that right] the hierarchy of common values. applies under the conditions defined by the Treaty'. 51The content of the right of access to documents, as set out in the Charter, is thus delimited by the provisions of Arti- cle 255 EC. That delimitation is the logical consequence of the difference in legislative value between the Charter and the binding 83. As the solemnity of its form and the provisions of the Treaty. procedure which led to its adoption would give one to assume, the Charter was intended to constitute a privileged instru- ment for identifying fundamental rights. It is a source of guidance as to the true nature of the Community rules of positive law. 86. That should not, however, cause us to overlook the fundamental nature of that right, as affirmed by the Member States of the Union at the time it was introduced into the Charter. Although not enshrining a positive right itself, Article 42 of the Char- ter confers on that right a quality which 84. In this case, the link between Article 42 should provide guidance for its interpreta- of the Charter and Article 255 EC is tion. I consider that where it is decided that a right should be classified as a fundamen- tal right the authorities responsible for 50 — The fifth recital in the preamble states that '[t]his Charter applying it are under a strict requirement reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiar- to give it the wide interpretation demanded ity, the rights as they result, in particular, from the constitutional traditions and international obligations by its true nature. common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the 51 — Text of the explanations relating to the complete text of Court of Justice of the European Communities and of the the Charter as set out in Charte 4487/00 Convent 50, of European Court of Human Rights'. 19 October 2000 (http://ue.eu.int/df/default.asp?lang=en).

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between the medium and the information. 97. It relies, first, on the wording of So far as the applicant is concerned, it is Decision 93/731, which uses exclusively only the substance of the document which the term 'documents' and not 'informa- is relevant. We request access to a docu- tion'. ment solely because it contains data which is likely to be of interest to us. It is therefore always ultimately a case of a request for information.

98. I have just given the reasons why the right of access to documents should not be 94. This understanding of the right of interpreted in this way. The Council's access to documents is, moreover, in accor- concept of 'access to documents' should dance with the broad interpretation which therefore be understood to mean access to should be used in such matters. It is the information contained in that institu- necessary, therefore, to interpret the con- tion's documents. cept of the right of access to 'documents' as meaning a right of access to the 'informa- tion' contained in the documents.

99. Since what counts is the information 95. It is in the light of that right thus itself and not the document, the argument interpreted that I can now give my opinion put forward by the Council that partial regarding the present appeal. access would oblige it to create a new document containing solely information which may be released is unfounded.

V — The appeal

101. Second, the Council contends that the objective of Decision 93/731 is not to establish a right of access to information. In its view, that decision has its own specific and limited objective. 104. As Advocate General Tesauro stated, 'a Council decision, albeit adopted in full compliance with its self-imposed rules on public access, would have to be regarded as unlawful if it resulted in fact in a negation of the essential substance of the right of information.' 57 In other words, the pur- 102. Decision 93/731 is, in fact, intended pose assigned to Decision 93/731 cannot be to ensure the internal operation of the relied on in support of a reading of its institution in conformity with the interests provisions which is contrary to fundamen- of good administration. 54 It is a measure of tal principles. internal organisation by means of which the Council may deal with requests for access to documents in its possession. 55

105. It is appropriate to consider the Council's third complaint, alleging that the principle of proportionality is not relevant in this case in the absence of an 103. Even within the limited scope of its absolute right of access to its documents. In power of internal administration, however, the Council's view, Article 4 of Decision the Council is bound by the general prin- 93/731 already applies that principle. ciples of Community law and, even more, by fundamental rights. The purpose assigned to Decision 93/731 cannot there- fore be relied on in breach of the funda- mental right of access to documents. This applies even more where, as the Court of 106. As I said, the right of access to Justice has observed, there is nothing to documents must be regarded as one of the

108. It is not denied in the present case, however, that the exception contained in Article 4 of Decision 93/731 with regard to protection of the public interest in the field of international relations meets Member States' requirements regarding defence of 111. I do not share that view.

58 — For this consistent case-law, see in particular Case 4/73 59 — Mrs Hautala claimed before the Court of First Instance, Nold v Commission (1974] ECR 491; Hauer, cited above, however, that access to the report at issue did not harm the paragraphs 23 and 32; Case C-62/90 Commission v public interest concerning international relations. Noting Germany [1992] ECR I-2S75, paragraph 23; Case in particular that the report contained exchanges of views C-404/92 P X v Commission [1994] ECR I-4737, para- berween the Member States on respect for human rights by graphs 17 and 18; Case C-84/9J Bosphorus [1996] ECR the country of final destination and contained formula- [-3953, paragraph 21, and Case C-293/97 The Queen v tions and expressions which might have caused tension Minister of Agriculture, Fisheries and Food, ex parte with certain non-member countries, the Court of First Standley and Others [1999] ECR I-2603, paragraphs 54 to Instance did not uphold the application on that basis 58. (paragraphs 71 to 74 of the contested judgment).

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112. In order to assess whether or not the public without any justification. By depriv- principle of proportionality has been ing all applicants of the right to have access infringed, it is not enough to ensure that just to information not covered by the exceptions like those contained in Arti- public interest exception, the Council is not cle 4(1) of Decision 93/731 are in accor- merely applying the principle of propor- dance with the public interest objectives tionality improperly, it is also undermining pursued by the Community. It is necessary the very substance of the right of access to also to ascertain whether they have been documents. applied in a manner proportionate to those objectives.

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where the administrative burden involved 120. It remains possible, however, that, in blanking out information which cannot where there would be a particularly heavy be released would be too great, there is a administrative burden for the institution need for caution. concerned, refusal may be justified on a wholly exceptional basis.

119. First, it is not in accordance with the 121. It seems legitimate, therefore, to allow nature of the right of access to documents a derogation to the right of partial access as a fundamental right to accept purely exclusively where the administrative bur- administrative reasons as grounds for den would exceed the limits of what can restricting partial exercise of that right, reasonably be required. 64 Exercise of that regardless of the extent of such constraints. right of refusal should even so be open to Second, it does not appear that the work review by the courts, in accordance with involved in marking the confidential part of the right to effective judicial review, and the a document is in general substantially institution concerned should be required to increased by the work of separating the provide evidence of the extent of the confidential parts from the others or of workload in question. removing them.

(2) order the Council to pay the costs, under Article 69(2) of the Rules of Procedure.

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