On July 3, the European Court of Justice has ruled on the very controversial case of boosting access to EU documents. Finally, after 5 years dispute between Dutch Liberal MEP Sophie In’t Veld and EU Council of Ministers we could hear the final verdict in this case. According to the ECJ: „EU institutions must demonstrate that the disclosure of a document effectively harms the public interest if they want to deny publication”. This also concernes papers related to the international agreements as well as the documents on international relations and negotiations.
The dispute mentioned above concerned access to documents regarding the Swift agreement between the EU and US on transferring banking data. In July 2009, In’t Veld had demanded access to a legal opinion by the Council regarding the legal base of the Swift-agreement. The Council refused and appealed a ruling to the Luxembourg-based Court in 2012 which refused publication, arguing that publishing the document would „negatively impact on the European Union’s negotiating position” and that the analysis was „only intended for the members of the council.” After 5 years, the Court changed it’s way of thinking a little bit and said that in order to refuse access to a given document, the institution refusing „must first explain how exposure could specifically and actually damage the [public] interest” – so there needs to be some logical clarification or proof of losses connected with revealing of a given document. Also this explanation has to be „reasonably foreseeable and must not be purely hypothetical” – by doing this, the Court has blocked the option of „what if” principle to be presented.
In the interview done after the judgement the Dutch MEP has expressed her satisfaction on the outcome of the judgement, and asked about her opinion she said that: „Everybody should be able to request access to documents, but right now that is impossible. With such long procedures, the right of access to documents is in practice a dead letter.”
Refreshed by this victory MEP’s are now very positive about reopening discussions with ministers about rewriting the currently 10-years old regulation on public access to documents.