Abstract
This thesis is in three parts. The first and second parts analyse the development of the
law and policy on freedom of information in the European Economic Community
and European Union between 1984 and 2004. These two parts focus on how the
Council, the Commission, and the Parliament enacted and implemented the rules on
FOI protection, and on the role of the Community court in this field. The third part
examines the roles of the European Parliament and the European Ombudsman, which
have supplemented the role of the Court in securing this right. As to the objectives of
this project: on the one hand, it seeks to understand the degree of legal protection
offered to freedom of information in the Union over the last two decades; on the
other, it seeks to identify how the current EU FOI regime could be improved. To
accomplish these objectives, attention is drawn to the following interrelated issues.
First of all, we consider the major controversies surrounding FOI law and policy
between 1984 and 2004. In particular, this thesis focuses on the extent to which the
2001 FOI Regulation addresses the pre-existing obstacles to FOI protection.
Secondly, the exceptions in Article 4(1) and Article 4(2) of the 2001 Regulation can
be categorised as mandatory and discretionary respectively, but the distinction
between the two provisions is vague. This indistinct dividing line should be removed
to end the misunderstanding that the Council, the Commission, and the Parliament
are entitled to refuse requests systematically when invoking the so-called mandatory
exceptions. Thirdly, we take into account the principles established by the 2001
Regulation, the EC Treaty, or by the Court to guide the interpretation of the
exceptions laid down in the Regulation. Fourthly, we argued that the EU legislator
should expressly incorporate the principle of proportionality into the 2001
Regulation. Finally, we analyse recent initiatives to adopt a constitution for Europe.
In the light of the "no" votes to the Treaty establishing a Constitution for Europe in
the referendums in France and the Netherlands in mid 2005, further steps are now
required to guarantee freedom of information in the future.
