In its decision of 4 November 1997 the Council refused Mrs Hautala access to the report on the ground that it contained sensitive information and disclosure of that information could be harmful for the European Union's relations with third countries. Under Community law on access to documents, the Council may refuse access to a document in order to protect the public interest with regard to international relations.

On 19 July 1999 the Court of First Instance annulled the Council decision and ruled that the Council should consider allowing partial access to documents. The Council, supported by Spain, lodged an appeal against the judgment of the Court of First Instance; Mrs HAUTALA was supported by Denmark, France, Finland and the United Kingdom.

Advocate General Léger delivers his Opinion in that case today.

The Opinion of the Advocate General is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.

The Advocate General notes first of all that the strength of the principle of access to documents derives from the fact that it is a fundamental right. He notes that the principle of public access to Council documents was laid down in a decision of 1993, which was intended to introduce a measure of transparency into the operation of the institutions. Various European Councils, in his view, reaffirmed that determination to enable citizens to have the fullest possible access to information. A code of conduct was also adopted by the Council and the Commission and the Treaty of Amsterdam itself established the right of access to documents of the European Parliament, the Council and the Commission.

The Advocate General refers expressly to the Charter of Fundamental Rights of the European Union, which provides for a right of access to such documents. He sees this as establishing the principle of transparency and as one of the surest methods of involving citizens in the management of public affairs.

In his view, the Charter placed the rights contained in it among the highest values common to the Member States, thirteen of which have, moreover, given substance to that principle by adopting general rules providing a right for the public to have access to documents held by the administration.

The Advocate General examines the idea of a "document". In his view, the right of access concerns the content of a document and not its substantive form: the objective is to have access to the information contained in the actual documents.

Although he considers that some requirements may justify restricting the right of access, in particular where national defence is concerned, he considers it necessary to make sure that such restrictions of a fundamental principle (which must always be interpreted narrowly) remain in proportion to the objective being sought (protection of the public interest).

In that regard, he believes that the Council's refusal to consider the possibility of partial access to documents clearly conflicts with the principle of proportionality. This "all or nothing" approach does not appear to him to be in accordance with the nature of the right of access to documents as a fundamental right. The extra work for the Council involved in identifying information which can be disclosed within a document does not in principle justify depriving citizens of the right to have partial access to information.

The Advocate General adds that the widespread exercise of that right in very many Member States does not generally pose insuperable problems.

The Advocate General proposes therefore that a right of partial access to documents should be given. He suggests that an exception to the right of partial access should be allowed only where the administrative constraints which justify it are insuperable, and that the way the exception is applied should be subject to judicial review.

Unofficial document for media use only; not binding on the Court of Justice. Available in all languages. For the full text of the Opinion, please consult our Internet page www.curia.eu.int  at approximately 15.00 hrs today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731