The Decision tested: the Statewatch cases
Statewatch started applying for documents from the Council on justice and home affairs in 1994. At first our requests elicited little information because until they were precisely framed the Council could simply say such a document did not exist (they have no obligation to construct a document that does not exist). Our second confirmatory application (an appeal against refusal of access) was made on 18 July 1995. We had been refused access to 14 documents and the appeal led to 11 being released. What we did not know at the time was the row it had created between the Council member states. When the draft reply left the Working Party on Information to go to COREPER two member states entered "scrutiny reservations" - the UK and France.
We applied for the report at the next stage, the one from COREPER agreed by the Council of Ministers. This showed that 14 member states had indicated their agreement with the response to send an additional 11 documents. But the version sent to us had been subject to the dreaded black marker pen and the views of the 15th member state had been blanked out. Sometime later, from "other sources", we did get hold of an uncensored version. The blanked area reads as follows:
"The French delegation opposed it [the reply]. It felt that documents in certain areas, currently posing no problem regarding free access to information, might do so in the future and it would then be difficult to refuse such access on account of the precedent principle." (1)
While it was not unusual for a member state to oppose the majority line in working parties such disagreements are usually sorted out by COREPER and thus are concealed from public view never reaching the Council of Ministers meetings. The French government's opposition to openness has been a consistent feature since the 1993 Decision on access.
In December 1995 we applied for all the documents agreed at the second and third post-Maastricht JHA Councils held in June and November 1994. In all we applied for 65 documents and on the first application were given 27 documents but refused 38. Our confirmatory application for the refused documents led to 12 more being released and 26 still being refused.
Behind these figures however another major row had taken place among the member states. All appeals ("confirmatory applications") are dealt with first by the Working Party on Information (WPI, comprised of the press officers from each of the 15 permanent national member state delegations based in Brussels). When the WPI met, Denmark, Sweden, Finland and the UK said they were unhappy with the restrictive approach being taken - too few documents were being released. When COREPER met on 6 March 1996 Denmark declared that not only did it oppose the reply but it intended to make a declaration which it wanted made public. The Council's Legal Service tried to head off this move by saying that such a statement could lead to a court case against the Council as it implied they were wrongly applying the 1993 Decision. However the majority of member states supported Denmark's right to have its views made public. In the event the UK and Denmark voted against and Sweden and Finland also issued critical statements. (2)
Even worse, from the Council's point of view, was to follow. Another Statewatch application for 14 sets of K4 Committee minutes led to 9 being refused. The ground for refusal was that:
"Your request in this regard is a repeat application which relates as well to a large number of documents. The General Secretariat has however found a fair solution.."
The Council's argument, under Article 3.2, was that because we always applied for documents concerning justice and home affairs all of our requests were potentially "repeat applications" because they concerned the same subject areas. Any common sense reading of the 1993 Decision would lead a citizen to think that "repeat applications" referred to a request for a document previously refused. Similarly where the 1993 Decision said that a relevant factor was "very large documents" the Council interpreted this as a "very large number of documents" which is not at all the same question. Given that they had decided that our application fell under Article 3.2 the Council was able to apply a "fair solution" - which means an arbitrary, and selective, decision on which documents to release.
Our "confirmatory application" split the Working Party on Information who spent an unprecedented five hours discussing the issue. Equally unusual was the two hour debate in COREPER which followed. The result was that the Council was split down the middle with 8 member states (Germany, France, Belgium, Luxembourg, Spain, Italy, Austria and Portugal) in favour of refusing access and upholding the ludicrous interpretations of "repeat applications" and "very large number of documents" and 7 member states against (Denmark, Ireland, Greece, Netherlands, Finland, Sweden and the UK). Denmark, Sweden and Finland issued public declarations saying all the documents should have been provided.
France and Belgium issued an extraordinary counter-declaration, published in an official Council press release, saying that:
"the applications by Mr Bunyan.. are contrary to the spirit of the 1993 Decision and that they abuse the good faith of the Council in its willingness to be transparent."
On that occasion we commented:
"The French and Belgian governments have a patronising view of the right of access to Council documents - it is apparently a democratic right which should not be used too often and certainly not regularly."
This was in May 1996 and the challenges to secrecy together with a divided Council of Ministers was becoming quite embarrassing in the run-up to the Intergovernmental Conference to be held in Amsterdam in June 1997 as openness was seen as a crucial issue especially by the Scandinavian countries.
In early 1996 another "struggle" between Statewatch and the Council took place. Under Article 3.1 of the 1993 Decision the Council had powers either to send an applicant photocopies of documents or "the applicant shall have access to a Council document.. by consulting it on the spot". On three occasions we were granted access to documents by "consulting" them on the "spot", on the "spot" meant I[TB] had to go to Brussels to get them. On the first occasion I[TB] duly rang the Council, arranged a convenient date in March 1996 (when I was going to Brussels anyway) and presented myself to the Council. A pile of 26 documents was given to me which I duly unstapled and photocopied them on a basic machine one page at a time. I then duly re-stapled the Council copy and returned it. This all took most of an afternoon but was a small price to pay to demonstrate that this tactic was not going to work. Two more piles of documents awaited me in June 1996 when I went to Brussels for a seminar on secrecy and openness in the European Parliament. However, Mr Brunmayr, from the General-Secretariat of the Council, who was speaking at the same meeting told me that it would no longer be necessary for me to photocopy the documents myself, they would be sent as usual (now with a bill for copying). Later, in December 1996, Mr Brunmayr told a conference in Cardiff that the only person who had been told to consult documents "on the spot" was "Mr Bunyan" and that they had no intention of using this means again.
The General-Secretariat's "vacational season" in August which stretches to include requests for documents made at the end of July led, in part, to the next confrontation. We sent in a request for a list of documents from 1994 (letter of 30 July), for six documents from 1992-3 (31 July), for one document from 1992 (13 August) and for 26 document produced in 1996 (13 August). No reply was received until 26 September 1996. When it came the General-Secretariat of the Council again decided to apply the "repeat applications" and "very large number of documents"arguments but in the most bizarre way. All four, separate, requests were lumped together as one - which was quite improper and in my view unlawful. By lumping the four requests into one: "The General Secretariat has found a fair solution by considering only the documents produced in 1996." This allowed them to completely ignore the first three requests!
The letter in this instance accused us of being "mechanistic" in our requests - we were, and are, certainly systematic. It went on, in accusing terms, to say that:
"your current applications are analogous or very similar to your previous applications, which almost always involve the very same subject: the Council proceedings under Title VI of the Treaty on the European Union." (3)
The fact that our applications concerned the "very same subject" is not surprising. Title VI cover justice and home affairs and Statewatch specialises in covering civil liberties, policing, immigration and asylum and legal cooperation.
On 19 November the Council of Ministers (Budget Council) voted by 8 votes to 5 to confirm this decision. The 8 votes for secrecy were: Austria, Belgian, France, Germany, Italy, Luxembourg, Portugal and Spain. The 5 votes for openness were: Denmark, Ireland, Netherlands, Sweden and the UK. Finland and Greece abstained. The 8 governments voting for secrecy also issued a statement saying that the applications "abuse the good faith of the Council in its willingness to be transparent."
On the Brussels and conference "networks" we were variously being accused of seeking simply to "test" the system for its own sake and/or trying to get hold of documents so that we could make a personal profit by of selling them commercially. This latter accusation was easily countered as Statewatch is a non-profit-making operation.
It was becoming clear that we had to take some action if our work was not to be frustrated and more importantly the issue of secrecy in the EU had to be confronted.
We decided to take a series of complaints to the European Ombudsman and chose to go to the Ombudsman rather than the Court of First Instance (of the European Court of Justice) because it a free, simple and open process in which you can represent yourself. Nor did it carry the risk of having to pay the Council's costs if a case was lost in the court (as ridiculously exemplified by the Carvel case).
At the end of November 1996 we lodged five complaints with the European Ombudsman and a sixth complaint at the beginning of December.
The six complaints were:
1. The decision of the Council to supply only 5 of 14 copies of the Minutes of the K4 Committee. (4)
2. Concerned three instances where the Council appears to have destroyed - "not conserved" - documents (Agendas of Working Groups) which are of "historical value".
3. Concerned the failure of the Council to maintain, and make publicly available, a list of the measures agreed under the "third pillar" (justice and home affairs).
4. Challenged the Council's assertion that the Presidency of the European Union is a separate "institution" from the Council of the European Union.
5. Concerned the Council's failure to give specific reasons for denying access to each document, using arguments which have no basis in the rules, and refusing documents "very recently adopted."
6. The final complaint concerned the decision of the Council to treat four separate requests as one request and to reject the first three en bloc not even "considering" them.
Out of the third complaint another arose concerning the refusal of access by the Council to the Agendas of the "EU-US Senior Level Group" on the grounds that there were three "authors" - the Presidency of the EU, the European Commission and the "US authorities".
The complaints raised a lot of interest in the European Parliament, a number of national parliaments, the media, lawyers, academics and voluntary groups. Increased awareness of the impending Intergovernmental Conference (IGC) led to many requests for information.
Imagine our surprise when we learnt at the end of March 1997 that by 9 votes to 6 the Council had decided that the European Ombudsman was not empowered to examine complaints concerning justice and home affairs and that as "these complaints are inadmissible, their substances cannot be considered." On this occasion the preliminary response to the Ombudsman had been considered by the unfortunately named "GAG" group (General Affairs Group). This group met three times, COREPER then discussed the issue and finally the General Affairs Council on 24 March 1997. The nine member states voting in favour of rejecting the European Ombudsman's remit were: France, Germany, UK, Ireland, Italy, Spain, Portugal, Greece and Luxembourg. Six were in favour of responding: Austria, Belgium, Denmark, Finland, Netherlands and Sweden.
The European Ombudsman replied that it was not for the Council to decide whether a complaint was admissible or not, that was his job under "Community law".
In June, two days after the Amsterdam Treaty had been agreed, the Council made a U-turn. It was a reluctant U-turn, which did not recognise the force of the European Ombudsman's powers, but U-turn it was. A change of heart was almost inevitable. The change of government in the UK and a change of position by Ireland meant a majority was now in favour of responding to the complaints.
Behind this change of position was a small but significant change to Title VI (covering justice and home affairs) of the current Treaty of European Union (TEU) in the Amsterdam Treaty. An UK initiative led to the inclusion in the new Treaty of a clause establishing the right of citizens to put complaints to the European Ombudsman on justice and home affairs questions. There is little doubt that this positive move stemmed from the debate inside the Council of Ministers on the European Ombudsman's role and the Statewatch case.
Between June 1997 and October 1998 the Council responded in a number of letters to the European Ombudsman and Statewatch was invited to respond to a number of them. The "results" are summarised below and can be simply expressed as six of the seven complaints have been "won" (there were six formal complaints, but one led to a further complaint). It should be emphasised that all the Decisions of the European Ombudsman and concessions by the Council establish new rights applicable to all future applicants not just Statewatch.
The first issue to be settled (complaint no 2) was the Council failure to keep all the Agendas of justice and home affairs Working Groups and the Calendar of JHA Meetings. (5) These were in the Council's words not "conserved". We had pointed out that under the Council Regulation on the historical archives of the EEC the Council was required to deposit all documents unless they have "no administrative or historical value". (6) The Council's reasoning for not "conserving" agendas was tortuous:
"A record of each meeting convened is moreover drawn up solely on the basis of the agenda for the meeting, which is adopted at the beginning of the meeting itself on the basis of the draft agenda sent by telex but which may differ from the draft."
However, the Council told the Ombudsman that following Statewatch's requests agendas were now being systematically kept. The Council also agreed that in future applicants would be given access to the Calendar of JHA Meetings.
The next complaint (no 3) concerned the Council's failure to maintain and make available a list of all the measures adopted by and under the Council of Justice and Home Affairs Ministers. (7) This was what is called a "non-violation" complaint. There was no obligation on the Council to produce an up-to-date list of measures except at the end of each year. We argued that normal democratic standards obliged legislators (for that is what the JHA Council is on intergovernmental justice and home affairs issues) to provide citizens with a list of adopted measures on request. For example, for the period January-July 1998. Again the Council tried to wriggle out of giving a direct answer. In July 1996 the Council told Statewatch that:
"Such a list does not exist; there are no Council documents as such (Article 1.2)." (8)
By the summer of 1998 they admitted that a "list of measures" was held by the General Secretariat of the Council and that they would be making a "list of instruments" available soon on the Internet. Only the most diligent observer would understand the distinction between "measures" and "instruments". The latter refers to Regulations and Directives which form part of Community law and usually result from a proposal from the European Commission. While "measures" refers to decisions forming the justice and home affairs acquis - this is due to their intergovernmental origin. In October 1998 the Ombudsman issued a Draft Recommendation which obliges the Council to maintain and make available an up-to-date list of measures. On 29 January 1999 the Council complied with the Recommendation.
When Statewatch had applied for the Calendar of JHA Meetings (see above) the Council had also tried to argue that they were produced by the "Presidency" of the Council of the European Union and not by the "Council" (the "Presidency is held by each of the EU member states in turn) (complaint no 4). (9) Here the General Secretariat was trying to argue that as the "Presidency" was a separate "author" namely "another institution". We argued, correctly, that "The Presidency is rather a function and an office of the Council". The Council tried to avoid answering this point but when pressed told the Ombudsman that they were one and the same institution, not separate ones. The issue of the "Presidency" was to lead to the seventh complaint, see below.
Complaint no 5 concerned the refusal of access to 17 out of 41 documents requested from a JHA Council meeting and a meeting of the K4 Committee. (10) We complained to the Ombudsman that the grounds for refusal were too general. The Ombudsman, with our agreement, looked at the refusal of access to 5 documents. On two of them the Council argued that to give access could undermine "public security" (Article 4.1) because they concerned "the fight against organised crime". The Ombudsman, in a critical remark, said the Council failed to comply with the need to provide a specific reasons for refusal of access. It was not sufficient simply to refer to "the fight against organised crime" without also giving an explanation as to the "nature of the information" contained in the documents.
The 3 other documents had been withheld under Article 4.2 (to protect the confidentiality of the Council's proceedings) on the grounds they contained "detailed national positions" and hung on the use of the word "therefore". The Ombudsman, in a critical remark, said that "the use of the word "therefore"" implied that access should be refused:
"to every document which contains detailed national positions, regardless of how insignificant a proportion of the document this element may constitute, or of what the other contents of the documents may be".
The Ombudsman's Decision called on the Council of Ministers to reconsider their original view.
In the key case concerning the Council's interpretation of "repeat applications" and "very large (number of) documents" to exclude even considering whole sections of requests for documents complaints the Ombudsman ruled that the Council of Ministers had misapplied the 1993 Decision and issued a critical remark (no 1). (11) The Ombudsman's Decision is quite clear, the term "repeat application" does not "include applications by the same person for different documents" nor could the term "very large number of documents" be properly used when the 1993 Decision said "very large documents". The Ombudsman also admonished the Council:
"Access to documents cannot therefore legitimately be blocked by the Council because of a possible negative attitude towards the purposes for which a request has been made, or the person who has made it."
The Ombudsman's Decision called on the Council of Ministers to reconsider its original view.
In the course of the correspondence in this case the Council tried to argue that the French version of Article 3.2 refers to "demande répétitive", a term which has negative and pejorative connotations. In his Decision the Ombudsman says that the 1993 Decision set no limit on the number of documents which could be applied for and that the:
"Council's interpretation could infringe the principle of legal certainty, because it would not be possible to know in advance how many different documents could be requested before the Council would consider the application to be a repeat application".
The Decision also said that:
"To extend the meaning of repeat applications so as to include applications by the same person for different documents could defeat the application of the general rule.."
The Court of First Instance has ruled that exceptions (such as repeat applications) to the general rule [of access] "should be construed and applied strictly, in a manner which does not defeat the application of the general rule." (12)
The circumstances surrounding complaint no 6 marked a new height of hostility by a majority of the Council to Statewatch's applications. During the Council's so-called "vacational season" (which covers August and Christmas) I sent four separate letters requesting documents. On 30 July 1996, 71 documents from 1994 were requested, on 31 July six documents from 1992/3, in the first letter of 13 August just one document from 1992 and in the second letter of this date a further 26 documents, 23 of which were from 1996. The Council replied, using the "repeat application" and "very large number of documents" arguments, and only considered documents produced in 1996 - thus only responding to one of the four requests. On appeal, by 8 votes to 5, the Council confirmed this decision.
In his Decision the Ombudsman said that his earlier "critical remark" rejecting the "repeat applications" argument in complaint no 1 also applied to this case. I had also complained that the Council should not refused access to documents on the grounds that documents were "recently adopted" or that they contained the views of EU member states. The Ombudsman found that there was no legal rule "which would require the Council.. to exclude either of these elements from consideration." So, we "won" half of complaint no 6, and "lost" the other half.
Complaint no 7 came out of complaint no 4. While the issue of whether the "Presidency" and the "Council" were the same institution was settled - that is, that they are part of one and the same institution - the Council refused Statewatch access to the Agendas of the "Senior Level Group" and the "EU-US Task Force". These groups had been set up to effect the "Transatlantic Agenda" signed in December 1995, and this included a "Joint EU-US Action Plan" on cooperation on justice and home affairs issues.
The Council had argued that the Agendas were drawn up by three authors, "The Presidency" of the EU, the European Commission, and the "US authorities" and therefore an application for the documents should be made to them and not the Council. The Ombudsman decided that "the Council must also apply its rules on public access to documents which it co-authored", and said it must reconsider its decision. (13)
Statewatch then wrote to the Council drawing their attention to the Ombudsman's Decision. Mr Trumpf, the Secretary-General of the Council, replied saying that, despite the Decision of the Ombudsman, the documents had three authors and that the Council's original view held. Why Mr Trumpf chose to reply is a mystery because he could not overturn a previous decision by the Council of Ministers. Statewatch then lodged a confirmatory application appealing against this decision.
On 28 November 1998 the Council of Ministers replied. (14) Their decision ignored the views of Mr Trumpf, as there was certainly not a majority for confronting the Ombudsman again.
The Council noted the Ombudsman's Decision and then launched on an entirely new argument which they had no chosen to present over the previous 16 months.
They now argued that "draft agendas" (I had never requested, or mentioned, draft agendas) only became "agendas" when adopted by the meeting in question:
"Generally, the agenda is jointly agreed only in the meeting room, so that it is only at this point that the draft - possibly with manuscript annotations - becomes the official agenda. Hence, up to the point when the agenda of the meeting is agreed, the papers in question are draft proposals."
The sheer banality of this argument is breathtaking. Every agenda for every meeting is a "draft" agenda until it is agreed at the meeting. Every agenda supplied by the Council to us was, of course, a "draft" agenda before it became an "agenda". This was the main ground for the Council's refusal of access to the documents.
The Council also tries to argue that only the "Presidency" of the Council is actually involved - yet the argument that the "Presidency" and the "Council" were separate institution had already been rejected by the Ombudsman. The Council even tries to argue that as these agendas are "neither registered or filed systematically in the Council's archives" and "do not bear any number or code and often not even a date" they do not fall within the 1993 Decision on access. What this argument tells us however is that the Council does not organise its documents very efficiently.
The Council concludes in this case to say that it is:
"of the opinion that the documents in question are not "held by the Council" in the sense of Article 1(2) of Decision 93/731/EC, but only by officials in the General Secretariat and therefore fall outside of the scope of application of Decision 93/731/EC." (italics emphasis in original).
Here yet another indefensible argument is used. The idea that the General Secretariat of the Council of the European Union, who they have admitted do hold the documents, is somehow a different "institution" to the Council is as spurious as the argument that the "Presidency" of the Council of the European Union is different to the Council of the European Union.
The principle of the 1993 Decision, upheld by the Court of First Instance and the European Ombudsman, is that all documents held by the Council can be applied for (with certain explicit and narrow exceptions). The case against the Council is simple - they have always admitted the documents requested are held by the Council and they thus automatically fall within the 1993 Decision.
Statewatch took this case back to the European Ombudsman (see later).
1. Unexpurgated "Note": COREPER to Council, "Access to documents - confirmatory application by M.Bunyan", Limité, 14.9.95.
2. See Statewatch, vol 6 no 2.
3. Letter dated 26.9.96.
4. See Statewatch, vol 6 no 3.
5. European Ombudsman, 1054/25.11.96/STATEWATCH/UK/IJH
6. Council Regulation (EEC, EURATOM) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community".
7. European Ombudsman, 1055/25.11.96/STATEWATCH/UK/IJH
8. The Council is no obliged to "construct" a document that does not already exist.
9. European Ombudsman, 1056/25.11.96/STATEWATCH/UK/IJH
10. European Ombudsman, 1057/25.11.96/STATEWATCH/UK/IJH
11. European Ombudsman, 1053/25.11.96/STATEWATCH/UK/IJH
12. Cases T-194/94, John Carvel and Guardian Newspapers v Council (see Chapter 2); Case T-174/95, Svenska Journalistförbundet (Tidningen Journalisten) v Council (see Chapter 4); T-105/95, World Wildlife Fund for Nature (WWF): Judgment: Court of First Instance Intervenors: Sweden (for the applicant); France, UK (for the Commission): Comment: This was the first case concerning the Commission and access to documents. It established that the institutional rules on access were binding and could be relied upon by individuals against them. It also clarified the distinction between 'mandatory' and 'discretionary' refusals under the 1993 Decisions, stating that an institution could invoke a 'mandatory' and 'discretionary' exception simultaneously. Furthermore, it introduced the principle that exceptions from the rules have to be interpreted and applied strictly. Finally, it is the first case to interpret the exception relating to 'inspections and investigations, etc.'. The applicant won because the Commission had not clearly explained how the documents fell into the exceptions from access.
13. "European Ombudsman holds that the Council must re-examine an application for access to documents", press release from the European Ombudsman, 6.7.98.
14. Letter from the Council, 28.11.98.
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