EU member states did not take yes for an answer. A fresh pro-transparency court ruling was repeatedly challenged by the Council of ministers.
A ruling appealed within weeks
The public has a right to know the positions of EU member states before final decisions are made. This was the bottom line in a ruling by the General Court of the EU on 22 March, in a case raised by Access-Info, a network and information centre based in Madrid. A majority of governments would not accept it. Less than two months after the pro-transparency ruling, the Council of ministers decided to appeal it to the Court of Justice, the highest instance of the EU courts in Luxembourg. The formal decision was taken at a Council meeting on 13 May, with no member state voting against.
The seemingly unanimous appeal might still be challenged at a later stage. Pro-transparency governments did not object to having the case brought to a final ruling, but had reserved their right to side with Access-Info once the wording of the appeal was known. At the same time, the Council refused to accept the preliminary ruling in at least two ongoing cases of access to documents.
The soil directive case
In a case concerning deliberations on a directive for the protection of soil, a "progress report" regarding the proposal was made public, but with all national positions blanked out. The applicant, César Nicolás Cuevas, asked for a full release of the document, referring to the ruling in the Access-Info case.
A majority of member states objected to a full release: "(...) the Council considers that, on balance, all possible factors which would at the present stage, plead on favour of releasing document 6124/1/10 REV in its entirety are outweighed by the need to protect the Council's decision-making process."
Three member countries had a different opinion when the case was discussed at a working party meeting on 20 May. Denmark abstained from voting, as did Finland, which added that the Finnish positions on the soil directive could be released. Sweden also accepted releasing its own positions, and added: "Sweden finds that the reply does not sufficiently clarify how the interpretation of Article 4(3) as laid down in case T-233/09 (Access Info Europe v. Council) has been taken into account. Therefore, Sweden cannot agree with the reply."
A third case along similar lines
On top of the appeal in the Access-Info case and the refusal to release a full document on the soil directive, a third case (Ronny Patz v. Council) was being discussed along similar lines. It was not yet known whether the Council in the Patz case stuck to an outright refusal, or whether the arguments were more developed than in the Cuevas case. Documents concerning the Patz case were not accessible at the time. The wider argument over EU openness ran alongside the dispute in which the Commission suggested using Google as the debate on access got heated.
Frequently asked questions
What did the General Court rule?
On 22 March the General Court of the EU ruled that the public has a right to know the positions of EU member states before final decisions are made, in a case raised by Access-Info, a network and information centre based in Madrid.
How did the Council respond to the ruling?
Less than two months later the Council of ministers decided to appeal to the Court of Justice, the EU's highest court in Luxembourg, in a decision taken on 13 May with no member state voting against.
Which member states favoured releasing their positions?
When the soil-directive case was discussed at a working party meeting on 20 May, Denmark and Finland abstained — Finland noting its positions could be released — and Sweden accepted releasing its own positions while stating it could not agree with the Council's reply.