Opinion of the Advocate-General

1. This appeal was brought by the Council of the European Union against the judgment of the Court of First Instance of the European Communities of 19 July 1999 in Case T-14/98, which annulled the Council Decision of 4 November 1997 refusing Heidi Hautala, a Member of the European Parliament, access to the report of the Working Group on Conventional Arms Exports.

2. This case originated with a written question which Mrs Hautala put to the Council on 14 November 1996, in which she stated that she was concerned by the violations of human rights which were being assisted by arms exports from Member States of the European Union. Mrs Hautala asked the Council what the reasons were for the secrecy surrounding the guidelines which the Working Group on Conventional Arms Exports had proposed to the Council's Political Committee with a view to clarifying the criteria governing arms exports.

3. The Council replied on 10 March 1997 stating that one of the eight criteria taken into account in arms exports decisions concerned respect for human rights in the country of final destination. It added that at its meeting on 14-15 November 1996 the Council's Political Committee approved a report from the Working Group on Conventional Arms Exports, with a view to further enhancing the consistent implementation of the common criteria.

4. By letter of 17 June 1997, addressed to the Secretary-General of the Council, the applicant asked to be sent the report mentioned in the Council's answer.

5. The report was approved by the Political Committee but not by the Council itself. It was drawn up under the COREU special European correspondence system and was therefore not distributed through the normal channels for distributing Council documents. In the Council's practice, the COREU network is reserved for questions falling within the abovementioned Title V. Distribution of documents transmitted via the COREU network is restricted to a limited number of authorised recipients in the Member States, the Commission of the European Communities and the General Secretariat of the Council.

6. By letter of 25 July 1997, the General Secretariat of the Council refused access to the report under Article 4(1) of Decision 93/731/EC, stating that it contained highly sensitive information, disclosure of which would undermine the public interest as regards public security.

7. By letter of 1 September 1997 the applicant made a confirmatory application, in accordance with Article 7(1) of Decision 93/731.

8. The confirmatory application was considered by the Information Working Party of the Committee of Permanent Representatives 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 document.

9. By letter of 4 November 1997, the Council rejected the confirmatory application on the grounds that disclosure of the report could be harmful for the European Union's relations with third countries. It stated that access to the document was refused in order to protect the public interest with regard to international relations.

10. On 13 January 1998 Mrs Hautala brought an action before the Court of First Instance for annulment of the Council's decision refusing access to the report.

11. The terms of the contested judgment are set out below, following the description of the legal background to the present case.

I - Legal background

12. The Final Act of the Treaty on European Union signed at Maastricht on 7 February 1992 contains a Declaration (No 17) on the right of access to information, which states:

The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions.

13. At the close of the European Council in Birmingham on 16 October 1992, the Heads of State and of Government issued a declaration entitled A Community close to its citizens, in which they stressed the need to make the Community more open. That commitment was reaffirmed by the European Council in Edinburgh on 12 December 1992.

14. On 5 May 1993 the Commission addressed to the Council, the Parliament and the Economic and Social Committee Communication 93/C 156/05 on public access to the institutions' documents. It contained the results of a comparative survey on public access to documents in the Member States and some non-member countries, and concluded that there was a case for developing further the access to documents at Community level.

15. On 2 June 1993 the Commission adopted Communication 93/C 166/04 to the Council, the European Parliament and the Economic and Social Committee on openness in the Community, setting out the basic principles governing access to documents.

16. At the European Council in Copenhagen on 22 June 1993, the Council and the Commission were invited to continue their work based on the principle of citizens' having the fullest possible access to information.

17. Within the framework of these preliminary steps towards implementing the principle of transparency, the Council and the Commission approved on 6 December 1993 a Code of Conduct concerning public access to Council and Commission documents, aimed at establishing the principles to govern access to documents held by them.

18. The Code of Conduct sets out the following general principle:

The public will have the widest possible access to documents held by the Commission and the Council.

19. Document is defined as any written text, whatever its medium, which contains existing data and is held by the Council or the Commission.

20. The circumstances which may be relied on by an institution as grounds for rejecting a request for access to documents are listed in the Code of Conduct in the following terms:

The institutions will refuse access to any document whose disclosure could undermine:

- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

- ...

They may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.

21. The Code of Conduct further provides:

The Commission and the Council will severally take steps to implement these principles before 1 January 1994.

22. In order to put that undertaking into effect, the Council adopted Decision 93/731/EC on public access to Council documents.

23. Article 4(1) of Decision 93/731 provides:

Access to a Council document shall not be granted where its disclosure could undermine:

- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

....

II - The contested judgment

24. The Court of First Instance sets out the pleas in law put forward by Mrs Hautala as follows:

The applicant puts forward three pleas in law to support her application: first, infringement of Article 4(1) of Decision 93/731; second, infringement of Article 190 of the EC Treaty (now Article 253 EC); third, breach of the fundamental principle of Community law that citizens of the European Union must be given the widest and fullest possible access to documents of the Community institutions, and of the principle of protection of legitimate expectations.

25. Since the decision to refuse access was annulled on the basis of the first plea the Court did not consider the other two pleas.

26. The Court considered in turn the three arguments put forward by the applicant in support of her first plea. It sought to determine first, whether the confirmatory application was given adequate consideration by the Council; second, whether access to the report could be refused by reference to the public interest concerning international 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.

27. The Court rejected the first two arguments put forward by Mrs Hautala. It accepted the third argument, in favour of granting the applicant partial access to the report, and ordered the annulment of the Council's refusal on the following grounds:

75 As regards the third argument, which is supported by the Swedish Government, namely that the Council infringed Article 4(1) of Decision 93/731 by refusing to grant access to the passages in the report which are not covered by the exception based on protection of the public interest, it should be observed that the Council considers that the principle of access to documents applies only to documents as such, not to the information contained in them.

76 It is thus for the Court to verify whether the Council was obliged to consider whether partial access could be granted. Since this is a question of law, review by the Court is not limited.

77 Decision 93/731 is a measure of internal organisation adopted by the Council 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 with requests for access to its documents (see, to that effect, Case C-58/94 Netherlands v Council [1996] ECR I-2169, paragraphs 37 and 38). Consequently, if the Council so wished, it could decide to grant partial access to its documents, under a new policy.

78 Decision 93/731 does not expressly require the Council to consider whether partial access to documents may be granted. Nor, as the Council accepted at the hearing, does it expressly prohibit such a possibility.

79 In view of the above, the basis on which the Council adopted Decision 93/731 must be borne in mind for the purpose of interpreting Article 4 of that decision.

80 Declaration No 17 recommended that the Commission should submit to the Council no later than 1993 a report on 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 Commission to "continue their work based on the principle of citizens' having the fullest possible access to information".

81 In the preamble to the Code of Conduct, the Council and the Commission refer expressly to Declaration No 17 and the conclusions of the European Council in Copenhagen as the basis for their initiative. The Code of Conduct states the general principle that the public will have the widest possible access to documents.

82 Furthermore, the Court of Justice stressed in Netherlands v Council, paragraph 35, the importance of the public's right of access to documents held by public authorities. The Court of Justice noted that Declaration No 17 links that right with "the democratic nature of the institutions". In his Opinion in that case ([1996] ECR I-2171, point 19), the Advocate General stated, with reference to the individual right to information, as follows:

"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, after amendment, Article 6 EU] of the Common Provisions."

83 The Court of First Instance recently held in Svenska Journalistförbundet, paragraph 66, referring to Netherlands v Council, that:

"The objective of Decision 93/731 is to give effect to the principle of the largest possible access for citizens to information 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 general principle is established and exceptions to that principle are then laid down, the exceptions should be construed and applied strictly, in a manner which does not defeat the application of the general rule (see, to that effect, WWF UK v Commission, paragraph 56, and Interporc v Commission, paragraph 49). In the present case, the provisions to be construed are those of Article 4(1) of Decision 93/731, which lists the exceptions to the above general principle.

85 Furthermore, the principle of proportionality requires that "derogations remain within the limits of what is appropriate and necessary for achieving the aim in view" (Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 38). In the present case, the aim pursued by the Council in refusing access to the report was, according to the reasons stated in the contested decision, to "protect the public interest with regard to international relations". Such an aim may be achieved even if the Council does no more than remove, after examination, the passages in the report which might harm international relations.

86 In that connection, the principle of proportionality would allow the Council, in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the interest in public access to those fragmentary parts against the burden of work so caused. The Council could thus, in those particular cases, safeguard the interests of good administration.

87 Accordingly, Article 4(1) of Decision 93/731 must be interpreted in the light of the principle of the right to information and the principle of proportionality. It follows that the Council is obliged to examine whether partial access should be granted to the information not covered by the exceptions.

88 As appears from paragraph 75 above, the Council did not make such an examination, since it considers that the principle of access to documents applies only to documents as such and not to the information contained in them. Consequently, the contested decision is vitiated by an error of law and must therefore be annulled.

III - Pleas in law and arguments of the parties

28. The Council is seeking to have the judgment of the Court of First Instance set aside and is supported by the Kingdom of Spain, intervener in the appeal. It claims that the Court made an error of law by interpreting Article 4(1) of Decision 93/731 as requiring the Council to consider whether it should grant partial access to information not covered by the exceptions to public access to its documents.

29. The Council and the Kingdom of Spain claim that the Court has misconstrued Decision 93/731, as regards both its wording and its objective, and has wrongly applied the principle of proportionality.

30. The Council considers that the Court has categorised as being a right to information what is merely a right of access to public documents. The text of Decision 93/731 refers only to Council documents in their existing form and not to the items of information which they contain. The Council 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 documents. It does not oblige it to create a new document comprising only items of information which may be disclosed, as the contested judgment appears, wrongly, to require. The Council observes that the approach taken by the Court is likely to create a considerable administrative burden and significant practical difficulties since it would be necessary to determine which parts of each document could be released.

31. In the view of the Council, the objective of Decision 93/731 is not to enshrine a right to information. The judgments of the Court of First Instance relating to the right to information fail to recognise that the Court of Justice in its judgment in Netherlands v Council, cited above, refers to access to documents and that Declaration No 17 on the right of access to information is a political statement and has no binding effect.

32. As regards the principle of proportionality, to which the Court of First Instance refers in the contested judgment, the Council considers that it cannot be applied in order to determine the validity of a restriction on a right protected under Community law. The decision aims not to confer an absolute right of access to Council documents on members of the public, but to arrange for access to be granted on certain conditions. In the absence of a general principle of Community law conferring an absolute right of access to Council documents 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 restriction on a right protected under Community law. In addition, by ensuring by means of the exceptions laid down in Article 4 that disclosure of documents will not harm certain interests in need of protection, Decision 93/731 already applies the principle of proportionality. That principle is thus fully taken into consideration.

33. The Kingdom of Spain shares that view. It contends that it cannot be inferred either from the legislation in force or from the case-law of the Court of Justice and the Court of First Instance that there is a principle of a right to information such as is embodied in the contested judgment. It also contends that the principle of proportionality, when applied to measures adopted by the Council in relation to Article 4(1) of Decision 93/731, can only mean that that institution must act within the confines of what is appropriate and necessary in order to fulfil the requirements of that provision. That involves denying access to its documents if one of the interests listed in that provision would otherwise be undermined.

34. Mrs Hautala claims that the appeal should be dismissed. The United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark, interveners in the appeal, and the Kingdom of Sweden and the Republic of Finland, interveners at first instance and present at the appeal stage, support that claim.

35. In the view of Mrs Hautala and the Member States associated with her defence, the right of partial access is required by both the wording and the context of Decision 93/731. They add that the latter should be interpreted and applied in accordance with the general principles of Community law, which include the right to information. Entitlement to partial access to documents follows directly from the fundamental principle of Community law that European Union citizens should be granted the widest and fullest possible access to documents of the European institutions.

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 in this case to limit that right in order to safeguard other objectives deserving of protection. It requires, however, that exceptions should not exceed the limits of what is appropriate and necessary for achieving the aim in view.

37. Before giving my opinion on the abovementioned pleas and arguments I think it is appropriate to recall the rules of Community law governing the interpretation of Decision 93/731.

IV - The rules of Community law governing the interpretation of Decision 93/731

38. Decision 93/731 is based on Article 151(3) of the EC Treaty (now, after amendment, Article 207(3) EC), under which the Council is to adopt its own rules of procedure. It lays down the principle of public access to Council documents. It does, however, make exercise of that right subject to a number of conditions, which it lists and which include the exceptions contained in Article 4(1) of the decision.

39. In Netherlands v Council the Kingdom of the Netherlands sought annulment of Decision 93/731 on the ground that the Council wrongly relied as its legal basis on Article 151(3) of the Treaty and Article 22 of its Rules of Procedure, both of which are concerned solely with the Council's internal organisation. The Kingdom of the Netherlands 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 expressly designed to have legal effects vis-à-vis citizens. The Netherlands Government contended that the Council had categorised as a matter of internal organisation 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.

40. The Court of Justice acknowledged that so long as the Community legislature had not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures regarding the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.

41. It thus acknowledged the Council's right to use its power of internal organisation to introduce a measure of transparency into its operation. The absence of Community rules of a general nature governing access to documents undoubtedly justified an institution such as the Council improving 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.

42. Despite its aim, which by reason of the links it has with the very foundations of the European Community, clearly