Hostname: page-component-848d4c4894-ndmmz Total loading time: 0 Render date: 2024-05-07T03:50:20.563Z Has data issue: false hasContentIssue false
  • English
  • Français

Freedom of Information and Transparency as Administrative and Constitutional Rights

Published online by Cambridge University Press:  27 October 2017

Carol Harlow
Get access Rights & Permissions [Opens in a new window]

Extract

Freedom of information is an idea which has been high on the political agenda of western democratic societies for many years. It has been cultivated, propagated and sometimes misused in self-interested fashion by the media. Its meaning, always imprecise, has fluctuated. It has been recycled under the American terms of “openness” and “Government in the Sunshine”. Recently it has been once more recycled under the fashionable term “transparency”. In the European context, this imprecision has been detrimental to the development of logical and sturdy principles concerning transparency and access to information. What has emerged from the conceptual confusion has been a reliance on the more restricted administrative law rights of access to information in contexts where a constitutional right to transparency would have been more appropriate, with a consequential impoverishment of the transparency concept in EC law.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 2 , 1999 , pp. 285 - 302
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 British Steel v. Granada TV [1980] 3 WLR 774.

2 Council of Europe, Recommendation No R(81)19 on access to information held by public authorities.

3 Directive 95/46 on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data, OJ 1995 L281/31. And see Carlin, F., “The Data Protection Directive: the introduction of common privacy standards” 21 (1996) ELRev 65 Google Scholar.

4 Nehl, H-P., Principles of Administrative Procedure in EC Law (Hart Publishing, Oxford, 1999), 42 Google Scholar.

5 Vassilaki, I., “The Constitutional Background of Privacy Protection within the European Communities” 6 (1994) European Review of Public Law, 109, 113Google Scholar.

6 See further Galligan, D., Due Process and Fair Procedures: A study of Administrative Procedures (Oxford University Press, Oxford, 1996)Google Scholar.

7 Case T–194/94 Carvel and Guardian v. Council [1995] ECR II-2765.

8 Ibid at para 65.

9 C–350/88 Delacre [1990] ECJ I–395; T–85/94 Branco [1995] ECR II–45; World Wide Fund for Nature (WWF) v. Commission [1997] 2 CMLR, 55 (hereafter referred to as WWF).

10 Code of Conduct Concerning Public Access to Council and Commission Documents 93/731/EC OJ 1993 L340/41 as amended by Council OJ 1996 L325 and adopted by the Commission in Decision 94/90 OJ 1990 L46. The Commission is currently considering a draft directive based fairly closely on the Code: SG.C.2/VJ/CD D(99) 83.

11 Harlow, C., “European Administrative Law and the Global Challenge”, in Craig, P. and de Burca, G. (eds), The Evolution of EU Law (Oxford University Press, Oxford, 1998)Google Scholar.

12 Case C-58/94 Netherlands v. Council [1996] ECR I-2169, discussed below.

13 WWF above n 9.

14 Case T–309/97 Bavarian Lager Co v. Commission judgment 14 October 1999 (not yet reported), para 46.

15 Above n 4 at 43.

16 Ibid at 46–7; Select Committee on the European Communities, Competition Practice, HL (1981–2).

17 Curtin, D. and Mejers, H., “The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?” 35 (1995) CMLRev, 390, 392Google Scholar.

18 Ibid at 392.

19 Curtin, D., “Democracy, Transparency and Political Participation” in Deckmyn, V., and Thomson, I.(eds) Openness and Transparency in the European Union (Maastricht, EIPA, 1998), at 110 Google Scholar. And see, “Betwixt and Between: Democracy and Transparency in the Governance of the European Union” in Winter D. et al., Reforming the Treaty on European Union—The Legal Debate (1996); Postnational Democracy. The European Union in Search of a Political Philosophy (Kluwer, The Hague, 1997).

20 Public Access to the Institutions’ Documents 93/C 156/05 OJ 1993 C 156/5.

21 Guild, E., “The Constitutional Consequences of Lawmaking in the Third Pillar of the European Union” in Craig, P. and Harlow, C., (eds.), Lawmaking in the European Union (Kluwer Law International, The Hague, 1997)Google Scholar.

22 Increased transparency in the work of the Commission 93/C63/03 63/8 (5.3.93).

23 See further Burns, T., “Better Lawmaking? An Evaluation of Law Reform in the European Community”, in Craig, P. and Harlow, C.,(eds), Lawmaking in the European Union, (Kluwer International, The Hague, 1997)Google Scholar.

24 Vos, E. “EU Committees: the Evolution of Unforeseen Institutional Actors in European Product Regulation”, in Joerges, C., and Vos, E.,(eds), EU Committees: Social Regulation, Law and Politics (Hart Publishing, Oxford, 1999)Google Scholar.

25 Dehousse R. “Towards a Regulation of Transistional Governance? Citizen’s Rights and the Reform of Comitology Procedures” in Joerges and Vos (eds), ibid.

26 Bradley, K. St, C., “The European Parliament and Comitology: On the Road to Nowhere?” 3 (1997) ELJ, 230, 242CrossRefGoogle Scholar.

27 Published at (1996) OJ C261/132. See further Tomkins, A., “Responsibility and Resignation in the European Commission” 62 MLR (1999), 744 CrossRefGoogle Scholar.

28 Case T–188/97 Rothmans v. Commission (19 July 1999).

29 Code of Conduct concerning Public Access to Council and Commission Documents, 93/730/EC, L 340/41 confirmed for the Commission by Decision 94/90 OJ 1994 L46/58.

30 Above n 17 at 437–8.

31 Case C–58/94 Netherlands v. Council [1996] ECR I–2169.

32 Ibid at para 14.

33 Ibid at para 37.

34 Chiti, E. 35 CMLRev (1998) 189 Google Scholar. At 200 he blames the applicants for framing the case as a challenge to the legal basis of Decision 93/731.

35 But see Nehl, above n 4 at 16–26, in particular at 16.

36 Now AR 1998, pp.19–20.

37 Soderman J., “The Role and Impact of the European Ombudsman in Access to Documentation and the Transparency of Decision-making”, paper presented to EIPA seminar on Transparency and Openness, 1997.

38 Ibid.

39 Committee on Petitions, Report on the Special Report by the European Ombudsman to the European Parliament following his own-initiative inquiry into public access to documents (C4-0157/98) DOC-EN\RR\357\357258, PE 226.263/fin.

40 Decision of 20 December 1996; Annual Report for 1996; Special Report, ibid para 3.

41 Above n 39. Three additional bodies were added by Decision (OI/1/99/JH).

42 Special Report above n 39 at 7, 9.

43 Special Report ibid, Annex, at 2.

44 This is the reasoning of Case 294/83 Parti ecologiste “Les Verts” v. European Parliament [1986] ECR 1365. The agency cases are equivocal as they are so far staff cases: Cases 193, 194/87 Maurissen and European Public Service Union v. Court of Auditors of the European Communities [1989] ECR 1045; Case T–159/97 Fonseca Ferrao v. Office for Harmonisation in the Internal Market [1997] ECR II–1049.

45 Case C–68/94 Netherlands v. Council [1996] ECR I–2169. See also Case T–194/94 Carvel and Guardian Newspapers v. Council [1995] ECR I–2769 (hereafter referred to as Carvel).

46 AR 1998, 30.

47 1054/25.11.96/STATEWATCH/UK/IJH against the Council, AR 1997, 179; 1087/10.12.96/STATEWATCH/UK/IJH against the Council, AR 1998, 41.

48 Above n 45.

49 Larsson, T., “How Open Can a Government Be?”, in Deckmyn, V., and Thompson, I., (eds), Openness and Transparency in the European Union (EIPA, Maastricht, 1998), 47 Google Scholar.

50 FIDE Report, above n 37; “The European Ombudsman and Transparency” (Strasbourg, 13.4.99).

51 Complaint 634/97/PD against the Council of Ministers, AR 1998, 186, 190.

52 Bradley, A.W., “Administrative Justice: A Developing Human Right?” 1 (1995) European Public Law, 347 Google Scholar.

53 In Case 222/84 Johnston v. Royal Ulster Constabulary [1986] ECR 1651.

54 Weiler, J. “Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights”, in Neuwahl, N., and Rosas, A., (eds) The European Union and Human Rights (Martinus Nijhoff, Dordrecht, 1995)Google Scholar, makes the analogy with the “due process’ clause, Art 14 of the US Bill of Rights.

55 [1996] ECR I–2169, para. 16. See also Case T–83/96 Van der Wal v. Commission [1998] ECR II–545, ECHR Art 6(1) is cited. The case is currently under appeal to the ECJ.

56 Chiti, above n 34 at 203

57 A comparative study is annexed to the Commission draft directive: SG.C.2.VJ/CD D(99)51.

58 Cases which fall into this category include: T-83/96 Van der Wal v. Commission above n 55; Case T–124/96 Interporc v. Commission [1998] II–231; Case T–188/97 Rothmans v. Commission, judgment of the Court of Justice of 19 July 1999 (not yet reported).

59 eg, Carvel above n 45; Case T–174/95 Svenska Journalistforbundet v. Council [1998] ECR II–2289; and Case T–14/98 Hautala v. Council, judgment of the Court of Justice of 19 July 1999 (not yet reported).

60 Nehl, above n 4 at 50–53.

61 Cases T–30, 31/91 Solvay v. Commission, T–36, 37/91 ICI v. Commission [1995] ECR II–1775, 1821, 1825, 1847, 1901.

62 Above n 4 at 52.

63 Case T–14/98 Hautala v. Council above n 59.

64 Case T–14/98 Hautala v. Council above n 59 at para 87.