Court rejects journalists’ calls for full EU transparency

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The European Commission can restrict public access to the documents it files in lawsuits until after cases are decided, the European Court of Justice ruled yesterday (21 September), rejecting a request by a leading journalists' trade union based in Brussels. 

The Commission can "refuse an application for access to documents, without being under an obligation to undertake a specific examination," the judges ruled.

But once a judgement has been issued, the Commission can no longer withhold documents from the public eye, the Court said.

The case relates to requests from journalists for access to European Commission documents regarding sensitive cases, including the EU’s ‘Open Skies’ package of legislation, which were first tabled by the Association de la Presse Internationale (API) – a group representing Belgium-based foreign reporters – in 2003.

API had argued that it is in the public interest to give journalists – and the public at large – access to such documents at all stages of legal proceedings.

The Commission, meanwhile, had expressed fear that releasing the files might "adversely affect" court cases, a claim which API rejected as "purely hypothetical".

The Court of Justice agreed with the Commission that obliging EU bodies to give the public access to its documents after a hearing but before a final ruling could undermine cases that are still ongoing.

"Disclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings," the Court ruled.  

"Prevention of disclosure also makes it possible to prevent the criticism and objections which could be levelled against the arguments set out in those pleadings – by specialists and by the press and public opinion in general – from having the effect, in breach of the principle of equality of arms, of imposing an additional task on the Commission," it continued.

"The Commission might consider itself obliged to take account of them in the defence of its position before the court, whereas the parties to the proceedings – which are under no obligation to disclose their pleadings – can defend their interests free from all external influences," the Court said.

Journalists' partial victory

Reacting to the ruling, API said yesterday that the European Court of Justice had endorsed some of its views.

"In particular, the Court has confirmed that the Commission cannot refuse access to its briefs after judgement has been given, even in sensitive infringement proceedings against member states," the association said in a statement.

However, the press organisation regretted the Court's decision to uphold the Commission’s assertion that access to documents can be withheld until all legal proceedings are over.

"API continues to believe that allowing access also before the hearing would greatly serve the cause of transparency and informed reporting," the API stated.  

Commission 'analysing impact' of ruling

Asked by EURACTIV to respond to the ruling, Michael Mann, spokesman for European Commission Vice-President Maroš Šef?ovi? – who is in charge of administrative issues at the EU executive – said the Commission’s legal service was "carefully analysing the impact of the ruling" but described the outcome as "positive".

"The case is about access to Commission submissions in Court cases. The Court of First Instance judged that such submissions were manifestly not accessible to the public until the oral hearing, but would be after the hearing. This judgement was appealed by the applicant (Association de la Presse Internationale), by Sweden and by the Commission," Mann explained.

"The Commission considered that the confidentiality should continue until the judgement. Sweden and the API wanted the Court of Justice to annul the judgment insofar as it granted confidentiality before the hearing," he added.

"The Court of Justice has rejected the three appeals. However, in practice, the outcome is positive as the Court establishes a presumption that Commission submissions in pending cases are not accessible to the public," Mann concluded.

Journalists' right to protect sources

Meanwhile, in another landmark ruling, the European Court of Human Rights (ECHR) last week unanimously upheld the rights of journalists across Europe to protect their sources of information.

The issue is of particular relevance at the moment given that French newspaper Le Monde is locked in a bitter row with the office of French President Nicolas Sarkozy over the Elysée’s decision to use French intelligence services to identify an official who was leaking information to the newspaper.

The ECHR case concerns a case pitting Finnish-owned Dutch firm Sanoma against the Dutch government. The magazine publisher was forced to hand a CD containing photographs to the police. Although no warrant was issued, police put Sanoma under serious pressure, even briefly arresting the editor-in-chief.

The ECHR ruled that it was not up to the police or public prosecutors to compel journalists to reveal their sources, and police interference was "not prescribed by law".

"The decision reaffirms a continent-wide commitment to press freedom and guarantees the media’s fundamental right to confidentiality, and has halted the erosion of source protection," the European Newspaper Publishers’ Association (ENPA), the World Association if Newspapers and News Publishers (WAN-IFRA) and the World Editors Forum said in a joint statement released yesterday.

"The court has significantly strengthened journalists’ ability to gather and report information of public interest. This whole saga only reinforces the crucial need to keep a watchful eye on the press freedom situation even in countries where the press can operate freely," the press groups said. 

Meanwhile, the legal dispute between Le Monde and the Elysée is still ongoing.

"Increased public interest in cases before the [European] Court [of Justice] is simply a reflection of the Court’s ever-growing influence and should be seen as an opportunity," read a statement from API / IPA (Association de la Presse Internationale / International Press Association).

"We are proud to have raised the issues before the Court, and will continue to advocate for greater transparency of all governmental institutions," API continued. 

Reacting to the ECHR ruling, Arne König, president of the European Federation of Journalists (EFJ), said:"This is an important decision that confirms the European Court's commitment to this benchmark principle of press freedom," said. "This decision is all the more welcome as other cases are pending at the European Court and new threats to the protection of sources are emerging."

Expressing his delight with the ECHR judgement, Thomas Bruning, president of Dutch press association Persvrijheidsfonds (Free Press Fund) said "in the Netherlands source protection has been insufficiently laid down by law. A bill to this end is being prepared. The bill will need to be tightened as a result of this ruling of the European Court, and that is a good thing".

Entitlement to access European Commission, European Parliament and EU Council documents is considered a fundamental right of European citizens and a key element of the wider debate surrounding the transparency and openness of the EU institutions. 

Since the adoption of the Lisbon Treaty, the Parliament has argued EU access to documents laws should be widened to cover all European institutions, bodies and agencies, criticising the Commission for failing to update the rules (EURACTIV 18/12/09).

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