Brussels, 25/03/2011 (Agence Europe) - On 22 March, the EU General Court rescinded the Council decision of 26 February 2009 which denied access to certain information contained in a note, dated 26 November 2008, relating to a draft regulation on public access to institution documents. The Court ruled that the Council had infringed Regulation 1049/2001 by refusing, on the basis of unsubstantiated arguments, to say who had made the proposals contained in the note, which related precisely to public access to information.
The Access Info Europe association had asked the Council to see a note from the Secretariat General to the information working group, on the draft proposal on public access to documents of the institutions. This note contained proposed amendments or new forms of words suggested by several member states at the working group meeting on 25 November 2008. The Council provided a partial version of the note, deleting those sections which would have allowed the member states tabling the amendments to be identified. In refusing to provide this information, the Council argued that disclosure would seriously affect the decision-making process and was not required by any overriding public interest, thereby justifying the exception to the right of access to the documents of the institutions provided for in Article 4(3) of Regulation (EC) No1049/2001.
According to the Council, disclosure of such sensitive information at an early stage in the discussions would have given delegations less room for manoeuvre, affecting the Council's ability to reach an agreement. It would also have had the predictable effect of causing a move away from a written record towards oral communication, which would have affected the overall transparency of the decision-making process.
Access Info Europe appealed against this refusal, arguing that: - the Council had not demonstrated that disclosure of the names of the delegations would have seriously affected the institution's decision-making process; - it had not established the risk that delegations would stop presenting their positions in writing or how this would seriously affect the institution's decision-making process; - it had failed to take account of the overriding public interest justifying disclosure of the identity of the national delegations.
The Court stated that this case “raises the question whether, for the reasons invoked by the Council, the disclosure, at a time when the Council has not yet taken a decision, of information relating to the identity of those who made the proposals described in the requested document would seriously undermine the Council's decision-making process”.
The Court upheld the association's case, indicating that arguments advanced by the Council were too abstract and “not sufficiently substantiated to justify, in themselves, the refusal to disclose the identity of those responsible for the various proposals, who must, in a system based on the principle of democratic legitimacy, be publicly accountable for their actions”. It repeated that, if citizens are to be able to exercise their democratic rights, “they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information”. The Council had failed to explain “why it would be necessary to protect the identity of delegations which wish to make proposals tending to limit the principle of transparency on the pretext that a section of public opinion might be against this”.
The argument of the “particularly sensitive” nature of the proposed amendments made by delegations did not stand up to scrutiny either as, in this case, these proposals “are part of the normal legislative process, which naturally concerns the citizens who will be affected by that process, all the more so since at issue here is a legislative proposal relating to the rights of citizens to participate in that process”.
Given, these considerations, the Court annulled the decision without there being any need to determine whether there is an overriding public interest justifying the disclosure of that information or to consider the second plea, alleging breach of the obligation to state reasons. (F.G./transl.rt)