Special Report of the European Ombudsman concerning case against the Council 917/2000/GG (Statewatch)

Statement by Tony Bunyan (Statewatch) to the Petitions Committee on 20 June 2002


The Special Report concerns the implementation by the Council of two Recommendations made by the Ombudsman on 1 March 2001:

"1. The Council of the European Union should reconsider the complainant's application and give access to the documents requested, unless one or more of the exceptions contained in Article 4 of Decision 93/731 applies."

In his Special Report (p12) asks the European Parliament to consider adopting this recommendation as a resolution.

"2. The Council should maintain a list or register of all documents put before the Council and make this list or register available to citizens"

In his Special Report (pp11-12) the Ombudsman invites the European Parliament's opinion on this matter.

Recommendation 1 - failure to give access to documents

This complaint to the Ombudsman covered two requests for documents to the Council (dated 25.1.99 & 27.1.99). The outstanding request concerns the request to the Council of 25.1.99 for "all the documents (Restreint, Limite, Non-paper, Meeting documents, Room documents, SN documents and any other documents etc) that had been put before/considered by the meeting of the Police Cooperation Working Party (Experts' meeting - interception of telecommunications)" on 3-4 September 1998 (a two-day meeting on substantive issues whose agenda only mentioned one 4-page document).

The Council provided one document and, after we lodged a confirmatory application, the Council examined the "Outcome of Proceedings" for this meeting and identified and supplied to further documents.

We subsequently obtained and sent to the Ombudsman a copy of the "Outcome of Proceedings" for the meeting on 3-4 September 1998 (see special report, p5) which showed that "Meetings documents 1-6" noted on page 2 and referred to in a footnote had not been supplied.

Although invited by the Ombudsman to comment on this omission the Council did not comment, a fact noted by the Ombudsman in his initial Recommendation on 1 March 2001 and also noted at point 1.2 (p6) in the Special Report.

In addition the Ombudsman notes (Special Report p6) that the arguments used by the Council in response to the second Recommendation appeared to suggest that they think there are two categories of documents, ones with a certain degree of "finality" and those which are "transitory". The Ombudsman:

"considered that there was nothing to support the distinction put forward by the Council. Decision 93/731 covers access to any document held by the Council irrespective of its nature." (Special Report, p6).

The Council is of the view that it has complied with the Ombudsman's first Recommendation, but Special Report concludes:

"The Ombudsman therefore considers that the Council has not yet fully implemented his first recommendation" (Special report page 10).

We would ask the European Parliament to adopt this recommendation as a resolution as proposed by the Ombudsman.

Recommendation 2 - failure to maintain a list or register of all Council documents

This Recommendation concerns the Council's failure to maintain a list or register of all documents put before the Council and make this list or register available to citizens.

The origin of this complaint lies in an instruction issued by the previous Secretary-General of the Council (Mr Trumpf) to Directors General of the Council in December 1998 - just before the public register of documents went online on 1 January 1999 - which stated that:

"Confidential, Restreint, SN and non-paper documents will not be included in the public register. For this reason, from now on these documents will not be mentioned in official Council documents (in particular; on provisional agendas and in outcomes of proceedings)"

This raised the issue of whether the Council maintained a list or register of all documents placed before or considered by Council meetings.

The Ombudsman's Special Report states that:

"Community law grants citizens a right to access to documents held by the Council... this right extends to all documents held by the Council, irrespective of their nature. It is obvious, however, that the exercise of this right could be seriously impaired or even thwarted if a citizen does not even know which documents are held by the Council"

Throughout the Council has tried to maintain that there are two categories of documents:

1) official documents (including those "transformed" from, for example, an SN (sans numero) document into an official document) and

2) "transitory" or "ephemeral" documents which are not maintained on a list or made available to citizens - and are thus an unseen influence on Council decision-making.

The Council says it accepts the Ombudsman's Recommendation that it should maintain a list or register of all documents put before its meetings but then:

"continues by exempting from these documents certain "ephemeral" documents the "useful life" of which is considered to be very limited. These documents are nowhere clearly defined." (Special report)

Two issues arise. The Ombudsman observes that even if a proposal (say in a Room document):

"is subsequently reflected in a document that is recorded on the public register citizens may have an interest in knowing who made it. The same applies if a proposal is not accepted and thus not reflected in such a document" (p11, Special Report)

The Ombudsman states that: "it is hard to see how this criterion could be applied in an objective way" - that is between the two categories of documents put forward by the Council.

Moreover:

"The Ombudsman agreed with the complainant's view that citizens should have the right to know which documents were placed before the Council in order to find out what influences were brought to bear in determining public policy"

The Council tried to argue that the "hidden" documents simply represented the views of a single person or a very small group of people. Statewatch argued that a single person could be Mr Solana, the Secretary-General of the Council and a "very small group of people" could be three, four or five EU member states.

The obvious contradiction between the Council's view that it accepted this Recommendation, but then going on to define its acceptance by excluding "ephemeral" documents led the Ombudsman to observe that the Council's opinion:

"raise doubts as to whether the draft recommendations will indeed be implemented" (p10, Special Report)

The Ombudsman's unequivocal conclusion on this issue in the Special Report is that:

"Regulation 1049/2001 has created a legal duty to establish and make available a public register of all documents put before the Council"

However, because of his doubts as to whether, despite its legal duty, the Council will implement this Recommendation the Ombudsman's report invites the European Parliament's views on whether the Council is complying (p12, Special Report).

The statement from Hans Brunmayr, Deputy Director General (DG F), General Secretariat of the Council when he appeared before the Petitions Committee on 23 May simply reiterates that the Council are clearly determined retain "discretion" as to which documents are to be listed/go on the public register and which are not.

The Ombudsman's doubts as to whether the recommendation would be implemented are borne out.

In view of the need to ensure that the Council: i) implements the Ombudsman's Recommendation and ii) fulfils its legal duties we would ask the European Parliament to consider adopting a second resolution on this matter.

20 June 2002


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