The Decision tested - The Guardian case
The Council decision to allow citizens to apply for documents received little attention at the time. Some commentators argue that the EU governments thought it simply met a commitment and would not be widely used. Journalists who might be expected to want more information were after all almost exclusively Brussels-based and, the theory goes, could get whatever they wanted from the various press officer or their personal contacts.
The Council's work in the newly defined "third pillar" - covering policing, immigration and asylum, and legal cooperation - was conducted in the most secretive fashion.(1) It was also the most contentious affecting as it does the rights of citizens, refugees and asylum seekers. Prior to 1992 little that did not appear in the occasional press release appeared in the press. Meetings of officials and officers in the Trevi Group (1976), the Ad Hoc Group on Immigration (1986) and the Coordinators of Free Movement (1988, now the K4 Committee), and the EU Ministers meeting as "Trevi Ministers" and "Immigration Ministers" met, deliberated and decided measures in secret. The deliberations of these meetings directly affected peoples' rights - both citizens within the EU and those trying to enter.
More information did become available from the Ministers' meeting in London in December 1992 and Copenhagen in June 1993. The Maastricht Treaty came into effect on 1 November 1993 and the first meeting of the new Council of Justice and Home Affairs Ministers met for the first time on 23 November in Brussels.
The first challenge to the Council came on 2 February 1994 when John Carvel of the Guardian wrote to the Council asking, under the Decision, for documents from three meetings of the Council of Ministers - Social Affairs Council, the JHA Council and the Agriculture Council. (2) He requested COREPER preparatory documents, the attendance and voting records and the decisions taken by each Council. On 28 February the General Secretariat of the Council replied with some, very limited information. On 14 March John Carvel sent in a confirmatory application to which the Council did not reply within the one month time limit. So he wrote again on 29 April. At the General Affairs Council, 16-17 May, the decision to reject John Carvel's request for documents was endorsed by 10 votes to 2 (Netherlands and Denmark). The letter from the Council, dated 17 May, said he could not have the reports from the JHA Council because:
"they refer directly to the deliberations of the Council and its preparatory instances. If it did allow access, the Council would fail to protect the confidentiality of its proceedings... [including] the position taken by the members of the Council during its deliberations."
All the information he needed, and properly could be given to him, was in the press release!
The same letter refused access to the minutes of the Agriculture Council. It also said the "same considerations of confidentiality" applied to the "preparatory reports", minutes and voting record for the Social Affairs Council which:
"should not have been sent to you. However, owing to the novelty of the procedure for allowing public access to documents of the Council and its practical implementation, this information was sent to you because of an administrative error."
John Carvel and the Guardian newspaper took the case to the Court of Justice on 19 May 1994. They were "joined" (supported) by the Danish government, the Netherlands government and the European Parliament.
The top reporters in the Brussels-based press corps are a small group who are cultivated by the Commission and Council. In the "hot-house" Brussels circuit information is traded on a non-attributable basis. When John Carvel lodged the court case he was "informally" approached:
"I remember Theodore Pangalos, the Greek foreign minister who was then President of the Council, asking what all the fuss was about and could he not provide the documents required (presumably by the back door)..." (3)
His response was that the case had been taken on a point of principle. The Council had a code of public access to documents and were refusing to put it into practice. Moreover, it was not just a question for journalists but of citizens' rights.
The formal "day in court", which followed the voluminous exchange of papers and legal opinions from all parties, was on 5 July 1995 in the court in Luxembourg. The judgement, given on 19 October 1995:
"Annuls the implied decision of the Council refusing the applicants access to the preparatory reports, minutes, attendance and voting records of the Justice Council of 29 and 30 November 1993.." [it similarly annulled the Council decision on the Agriculture Council documents]
John Carvel and the Guardian newspaper had won the first, and very important, challenge to Council secrecy. It turned out that the Council was very reluctant to abide by the court's decision and another battle had to be fought to actually get the documents (see below).
The core of the Council's case was that documents, minutes etc need to remain confidential or the whole decision-making structure would break down. The Council used Article 4.1 of the Decision on access:
"Access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings"
Everything hung on the word "may". It did not say the Council "must" refuse access, but "may". In deciding whether or not to refuse access the Council had to weigh the interests of the Council in maintaining the confidentiality of its proceedings against the right of citizens' to gain access to a document. This it did not do. The Danish and Netherlands governments made a public declaration in the Council minutes of the General Affairs Council (16-17 May 1994) saying that:
"no comparative analysis has taken place of, on the one hand, the interests of the citizen seeking information, and, on the other hand, the criteria of secrecy of Council deliberations, as is required.. Had such a comparative analysis taken place, this should have been communicated to the Guardian."
The court's judgement of 19 October 1995 was a victory for John Carvel and the Guardian and the first significant step in challenging the Council's traditional "diplomatic" style of decision-making since the Treaty of Rome in 1976.
However, this was not the end of the case. The morning after the judgement John Carvel sent a fax to the Council asking what they were going to do to comply with the Court judgement. The Council did not reply until 27 November. It's letter said that:
"I am pleased to provide you with copies of all the following documents which you requested and which are enclosed"
Christmas intervened and by this time John Carvel was back in London as the Guardian's education editor . The contents of the envelope he received with this letter, containing a thick pile of documents, were not examined until early January. It transpired that it only contained 8 documents plus a press release. He should have received 49 documents plus the Minutes and the press release.
John Carvel's lawyers wrote to the Council giving a deadline of 19 January to avoid them having to file a new appeal to the Court of First Instance. Mr Trumpf, the Secretary General of the Council, replied that he did not consider this deadline binding but promised "this letter is receiving our urgent attention".
In the event the Council did send a second batch of 20 documents with a letter dated 8 February, but on the same day John Carvel's lawyers filed an application in the court - the last day on which one could be made. The Council's reply dated 8 February included two documents which had been "accidentally" omitted due to "an administrative oversight".
A third letter from the Council on 22 March produced ten more documents and a final letter on 23 May a further eight documents. In all, as a result of John Carvel's persistence and the threat of another court case, the Council handed over 46 documents plus Minutes and a press release. Access to three documents was refused under Article 4.1 "protection of the public interest (public security, international relations). These concerned: i) "Means of proof under the Dublin Convention"; ii) "Combating terrorism" and iii) "Establishment of the EDU and work of the Project Team" - two of these were acquired at a later date by Statewatch.
Nineteen of the 46 concerned immigration and asylum, 20 policing and customs and 7 judicial cooperation. His original request of 2 February 1994 was met by 23 May 1996. On 3 June 1996 John Carvel's lawyers withdrew their application and, although the second case was directly due to the delay in the Council's response, the Guardian had to bear the costs. Council representatives and the Secretary-General's report made great play on this claiming that the Guardian had "lost" the case, which is deliberately misleading.
What were the Council trying to hide?
The 46 documents revealed the work programme of the Council of Justice and Home Affairs Ministers right through and into 1996. The November 1993 meeting was crucial as it marked the end of the ad hoc groups set up between 1976-1988 and set out the new, permanent, structures put in place on 1 November 1993 by the Maastricht Treaty. The Trevi group (founded in 1976), the Ad Hoc Group on Immigration (1986), and the Coordinators of Free Movement (1998) were replaced by - the K4 Committee (senior interior ministry officials), three Steering Groups (policing and customs; immigration and asylum, and judicial cooperation), and a plethora of Working Groups under the Steering Groups. A new Directorate-General (DG H) covering what came to be known as the "third pillar" was set up too.
Taking the reports as a whole the only conclusion that can be drawn is that the price for "free movement" within a borderless EU was to be the construction of "Fortress Europe" - to exclude migrants from entry and the expulsion of suspected "illegal" immigrants. Moreover, the removal of border controls would also lead to the introduction of new systems of internal surveillance over EU citizens.
The reports on immigration and asylum deal with plans to implement the Dublin Convention (which introduced the "one-stop" rule for asylum applicants) including two sets of criteria ("Means of Proof") to refuse entry and "joint reports on third countries" - to be drawn up collectively by Member States' embassies. These would be used to prove that the refugees has no "good" grounds for seeking to enter the EU either from their country of origin or a so-called "safe third country" they had passed through.
The proposal to fingerprint all asylum-seekers and put these on a computerised EU-wide database named EURODAC is first mentioned in report from the summer of 1993 - it was given the go-ahead by the Council in November 1995 - and is now to be extended to suspected "illegal" immigrants as well.
The controversial decision to "arrive at a harmonised application of the definition of a "refugee" within the meaning of Article 1A of the 1951 Geneva Convention" had moved to the top of the agenda by the summer of 1993. One of the reports says it is "one of the most fundamental aspects of asylum policy". The Council of Ministers finally agreed this measure, in the face of strong opposition from NGOs, in November 1995.
One of the most extraordinary revelations was that just 27 days after the creation Europol Drugs Unit had been agreed in June 1993 the then "Trevi Ministers" held a second unpublicised meeting and told the Europol Project Team to carry out the "preparation of guidelines on extending the activities" of the EDU to "other areas of crime." This was in the face of repeated public declarations by all governments that the new body would only deal with drugs. In December 1994 the EDU was given at a stoke three new roles.
What difference would it have made if these reports had been available to the Guardian in February 1994? The new structures would certainly have been transparent instead of being shrouded in secrecy. While the work programmes covering areas critically affecting peoples' rights could have prompted journalists to ask the right questions and parliaments - national and European - to scrutinise proposed measures.
The case brought by John Carvel and the Guardian newspaper broke new ground by establishing that the cosy secretiveness of the Council's proceedings for the previous twenty years or more could be fought and tested in the court. Specifically the court started to define the limits of the use of "confidentiality" of the Council proceedings to refuse documents. The Council lost and, eventually, handed over the documents.
1: The "third pillar" is juxtaposed to the "second pillar" covering security (defence) and foreign policy (also created by the Maastricht Treaty). The "first pillar", dealt with by the Commission, broadly covered economic and social policy. The "first pillar" decision-making, the "Community method", is set out in the Treaty on the European Communities and then involved the European Parliament at least in an advisory role. The "second" and "third" pillars were at this time intergovernmental, that is, run by the 15 EU member states outside the formal structures.
2: For a summary of the Carvel case see: Judgement if the Court of First Instance, 19 October 1995 in Case T-194/94. Judgment: Court of First Instance (Intervenors for the applicant: Denmark, Netherlands, European Parliament); and "Request for documents of the Council: An account of the Guardian case", John Carvel in "Openness and transparency in the EU" edited by Veerle Deckmyn and Ian Thomson, EIPA, 1998.
3. "Request for documents of the Council: an Account of the Guardian case", John Carvel in Openness and Transparency in the European Union, eds. Veerle Deckmyn and Ian Thomson, EIPA, 1998.
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