The evolution of European Union criminal law (1957-2012)

The need for more openness in the work of the Council was recognised in 1994 by the
European Council in Corfu:
“The European Council … stresses that openness and subsidiaries are essential
components which require further elaboration.” 259
Steps began to be taken in this direction, which were acknowledged at national level.
This was the case in the UK, for example, with the House of Commons noting in 1994
that
“On 6 December 1993, the Council adopted new Rules of Procedure which provided for
greater publicity for Council proceedings as envisaged in the Edinburgh Conclusions,
except in the case of decisions taken under the two inter-governmental pillars” 260
Yet, the impact of these changes was limited. This was well illustrated by three cases
reaching the CJEU aimed at obliging the Council to release documents, mainly minutes
of meetings and working programmes agreed to during the Maastricht years. 261 The
unwillingness of the Council to do so was clear in the exchange of letters between the
journalist John Carvel of the Guardian and the Council, the origin of the first of those
cases. In these letters the Council said that the journalist could not have access to
documents of three specific Council meetings because
group on civil and penal justice incorporated six sub groups, specifically on extradition, penal
law, commercial law (mostly protection of financial interests), extension of the Brussels
Convention, simplification of transmission of documents and the right to drive motor vehicles.
The Schengen structure was also rather complex: it comprised an executive committee which was
basically the Council of Ministers and met biannually; a Central group which directed six
working groups and comprised a hundred and twenty officials (both civil servants and police
officials). The six working groups related respectively to Police and Security (Schengen I), Free
movement of persons and external border control (Schengen II), Transport Issues ((Schengen III),
Customs, movement of goods and agricultural products and risk in transportation (Schengen IV),
stupefacients and drugs (STUP) and SIS (ORSIS). Whilst the division in working groups
certainly allowed for more specialisation and hence better expertise, the large number of actors
involved in the “pre” decision-making process made the whole area rather complex and less
transparent; J. Benyon et. al., Police Co-operation in Europe, supra note 149,133-137.
259 European Council, Conclusions of the Presidency, Corfu 24-25 June 1994.
260 V. Miller, International Affairs and Defence Section, House of Common Library, “Openness
and Transparency in the European Union”, Research Paper 94/107, London, 24 October 1994, 2.
261 Case T-194/94 John Carvel and Guardian newspapers ltd v Council ECR II-02765 [1995];
Case T-105/95 WWF UK v Commission ECR II-00313 [1997]; and Case T-174/95 Svenska
Journalistforbundet v Council ECR II-02289 [1998]. In general, although in all three cases the
Court decided for the annulment of the decisions not to release the documents, the Court took a
balanced approach and held that a balance should be made between the interest of the citizen in
obtaining access to the documents and the interest of the institution in protecting the
confidentiality of its deliberations.
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