Law professor offers constitutional arguments for the disclosure of important Council documents. The General Court orders partial disclosure, but only on procedural grounds.
By Maarten Hillebrandt
On Thursday 12 September, the General Court gave its judgment in Besselink v Council. In January 2011, Leonard Besselink, then Professor of Constitutional Law at Utrecht University, requested access to the documents relating to the EU’s negotiations to accede to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In these documents, the Council discussed the strategic and substantive instructions to the Commission, which negotiated the accession on the EU’s behalf. The final draft of this draft accession treaty is currently going through the process of ratification. However, the Council refused access to the documents in which it instructed the Commission, on the basis of Article 4(1), third indent, of Regulation 1049/2001 on public access to EU documents. This article states that access must be refused where disclosure would undermine the public interest with regard to international relations.
In a court case, Besselink contested the Council’s reasoning. He argued that the Council had misconstrued the public interest in international relations, failed to apply its obligation to closely consider the possibility of partial access, and had fallen short in its duty to give reasons for its censorship of documents. An overarching concern in Besselink’s request for access was the public interest in a broad societal debate concerning the EU’s accession to the ECHR. As he argued in his application to the Court, the accession was of a constitutional nature, which made the disclosure of this document of exceptional societal relevance.
The General Court, in its judgement, refuses to go along with this constitutional reading. Rather, it applies a strict procedural review of the access request. It takes note of the Council argument that the documents are particularly sensitive due to their role in a negotiation with an external third party. The particular sensitivity that the Council claims is legally characterised by its reliance on Article 4(1), which is an obligatory exception ground of the Regulation 1049/2001. As the Court holds, it should therefore allow for a considerable margin of appreciation, as disclosure might undermine the ongoing negotiation as well as and future negotiations. In the judgement, it therefore merely reconsiders whether the Council correctly applied the procedural requirements under the access regulation, and comes to the conclusion that this is not the case for a part of the requested documents.
It may be noted in this respect that the General Court has followed a narrow reading of Article 11 of the Charter of Fundamental Rights of the European Union, which upholds a public right to freely express opinions and impart information. In this instance, the substance of Article 11 of the Charter was interpreted as a negative right. This means that it merely entails an obligation on the Council to abstain from interference in the free exercise of opinion. Instead, a positive reading of the right could have entailed a duty on the Council’s side to facilitate a debate on questions of exceptional political significance, through the provision of highly relevant information that it holds on the matter.
The result may be typified as unimaginative by some, and balanced by others. While the General Court concludes that the Council was too quick in refusing access to parts of the requested documents, it did not go along with Besselink’s claim to the exceptional, constitutionally significant nature of the requested documents. This means that it has foregone the opportunity take a bold step in the direction of more transparency and public debate. At the same, the judgement also provides a careful exercise of procedural scrutiny, which allows for wider public access than the Council was willing to grant at first instance. This shows once more that the public cannot take for granted that the Council will always carry out Regulation 1049/2001 to the letter, and proves the continuing value of close judicial review.
The General Court’s judgement can be found here.
This piece was originally posted on the Open Government in the EU blog.
Maarten Hillebrandt MSc is a doctoral researcher at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.
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