Is there a public interest in knowing what is going on in society? A comparative study of the European Courts
| Date | 01 October 2019 |
| Author | Daniel Wyatt,Maija Dahlberg |
| DOI | 10.1177/1023263X19865839 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
Article
Is there a public interest
in knowing what is going
on in society? A comparative
study of the European Courts
Maija Dahlberg* and Daniel Wyatt**
Abstract
Both of the European courts, namely the European Court of Human Rights and the Court of
Justice of the European Union, have well-established case law on the public’s right of access to
official documents. The core of the right is the same in both of the courts’ jurisdictions but the
interpretations concerning the breadth of the right are very different. One fundamental reason for
the public’s right of access to information being understood differently by each of these courts is
their divergent approaches to the assessment of the public interest associated with an individual’s
request for information. While the ECtHR openly evaluates the public interest or interests
involved in the disclosure of an official document, the CJEU gives this factor little or no weight. In
this article, our main argument is that CJEU should follow the ECtHR’s interpretation of the public
interest in order to give the right of access to documents the same scope in both legal regimes and,
in doing so, fulfil the requirements stemming from Article 52(3) of the Charter of Fundamental
Rights of the European Union.
Keywords
Access to documents, transparency, the European Court of Human Rights, the Court of Justice of
the European Union, public interest
* LL.D, Post-doctoral researcher, The Erik Castr ´
en Institute of International Law and Human Rights, University of Helsinki,
Finland; Senior Lecturer in Constitutional Law at Law School of the University of Eastern Finland
** Doctoral Candidate, University of Helsinki, Finland
Corresponding author:
Maija Dahlberg, University of Helsinki, Faculty of Law, P.O. Box 3, Fabianinkatu 33, 00014 University of Helsinki, Finland.
E-mail: maija.dahlberg@helsinki.fi
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(5) 691–712
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19865839
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1. Introduction
It is trite these days to say that tra nsparency is a desirable, if not nec essary, part of modern
democratic governance. Almost all of the many moving parts of government should, according
to the generally accepted logic of openness, be subject to its reach.
1
This seemingly accepted fact
appears to be now so orthodox that it occupies a central place in the two significant European legal
orders: the European Union (EU) and that built upon the European Convention on Human Rights
(ECHR) as adjudicated by the European Court of Human Rights (ECtHR). For example, within the
EU, the European Court of Justice (ECJ) in the case Turco emphasised the democratic importance
of the concept, noting that the increased openness of the EU institutions is fundamental as it
secures their legitimacy, effectiveness, the accountability of their actors as well as enables the
participation of citizens in decision-making processes.
2
The ECtHR, on the other hand, has
expressed that a person’s right of access to government-held information, broadly understood, is
a ‘genuine pillar of democratic governance’.
3
The public’s right to know what is going on in our
governments is therefore not a marginal question and the ability of the public to access information
should be effectively protected.
To this end, the active right of an individual to access information can be found in both of the
relevant European legal systems, however in somewhat different forms. In the EU regime, the right
of access to documents is protected explicitly and broadly in primary law
4
and in detail in
secondary law, namely the Access to Institutional Documents Regulation 1049/2001 (Regulation
1049/2001).
5
Whereas in the ECHR system, the right of access to documents is derived from the
freedom of expression and information found in Article 10 ECHR.
6
Further, the ECHR system
recognises the right of access to information, whereas in the EU system the right of access to
documents is protected. We argue, however, that the distinction is not crucial. Namely, it seems
that the ECtHR uses right of access to information as a synonym for the right of access to
documents.
7
Consequently, this article uses both the right of access to documents and access to
information interchangeably.
1. C. Grønbech-Jensen, ‘The Scandinavian tradition of open government and the European Union: Problems of compat-
ibility?’, 5 Journal of European Public Policy (1998), p. 187.
2. Joined Cases C-39/05 P and C-52/05 P Sweden and Maurizio Turco v. Council, EU:C:2008:374, para. 45. In this article,
we use the abbreviation ECJ to refer specifically to the European Court of Justice and then CJEU to refer to the Court of
Justice of the European Union, which includes both the ECJ and the General Court.
3. ECtHR, Magyar Helsinki Bizotts´
ag v. Hungary, Application No. 18030/11, Judgment of 8 November 2016, para. 161.
4. Article 15(3) TFEU and Article 42 Charter of Fundamental Rights of the European Union.
5. Regulation No. 1049/2001/EC regarding public access to European Parliament, Council and Commission Documents,
[2001] OJ L 145/43.
6. Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005, came into force on 3
September 1953.
7. See e.g., in Leander (ECtHR, Leander v. Sweden, Application No. 9248/81, Judgment of 26 March 1987, para. 74) the
ECtHR uses term ‘a right of access to register containing information’; in ECtHR, Loiseau v. France, Application No.
46809/99, Decision of 18 November 2003, extracts, the ECtHR uses term ‘a right of access to administrative data and
documents’; also ‘access to the archives’ (in ECtHR, Grupo Interpres SA v. Spain, Application No. 32849/96, Decision
of 7 April 1997, para. 150) has been used by the ECtHR. Further, the Council of Europe Convention is named ‘Access to
Official Documents’. Moreover, researchers have also used access to (official/public) documents as a synonym for
access to information, see D. Voorhoof, ‘Freedom of journalistic news-gathering, access to information and protection
of whistleblowers under Article 10 ECHR and the standards of the Council of Europe’, in O. Andreotti et al. (eds.),
Journalism at risk: Threats, Challenges and Perspectives (Council of Europe Publishing, 2015), p. 119 (‘access to public
692 Maastricht Journal of European and Comparative Law 26(5)
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