28 March 2012
Statewatch wins two new complaints: European Ombudsman decision breaches "space to think"
In a landmark decision the European Ombudsman has backed a complaint lodged by Statewatch and told the Council of the European Union that it has to:
"maintain a list or register of all documents put before the Council and make this list or register available to citizens"
This means that thousands of documents (SN documents - sans numero - Room documents, Meetings documents, Non-paper etc) not listed on the agendas of Council meetings or on the public register have to be recorded and supplied to applicants.
This decision directly affects the discussions over the new code of access to be agreed under the Amsterdam Treaty on the issue of the "space to think". The Council and Commission maintain the need for this "space" and propose that such documents should be permanently excluded from public access. Now the Ombudsman has ruled that:
"The Ombudsman agrees 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 have been brought to bear in determining public policy...
The Ombudsman considers that principles of good administration require that in order to allow citizens to make proper use of their right of access to documents, all documents that are put before the Council are listed in a document or register that is accessible to citizens.
The Council tried to argue that these documents were only the views of a "single person" or a "very small group of persons". Statewatch countered by saying that the views of a "single person" may be of greater or lesser significance, for example, if that person was the Secretary-General of the Council. Similarly, the views of a "very small group of persons" could be those of several EU member states. The Ombudsman did not accept that such documents fall outside the code of access.
In the two complaints from Statewatch against the Council of the European Union over access to documents the Ombudsman found there had been three instances of maladministration and has made two Recommendations (under Article 3.6 of the Statute of the Ombudsman, one of his strongest powers) which the Council has to comply with by 31 May 2001.
Council has to hand over Agendas of the EU-US "Senior Level Group and documents on the EU-FBI telecommunications surveillance plans
In a further Recommendation the Ombudsman says that the Council has to hand over the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" set up under the Transatlantic Agenda and a series of documents from the Police Cooperation Working Party.
The Council first tried to refuse access to the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" on the grounds that there were three authors - the Council, the Commission and the US authorities. When the Ombudsman made a decision in favour of Statewatch being given access, on 28 June 1998, the Council again refused on entirely new grounds - that the agendas were held by the General Secretariat of the Council but not by the Council. Now the Ombudsman has ruled that there is: "nothing that would warrant the conclusion that the Council's General Secretariat should be considered as "another Community institution or body". The Council now has to supply the agendas of these meeting unless they fall under the exceptions in Article 4 of the present code - an argument which they could have tried but have not over the past five years.
The Council also has to release five "Meetings documents" submitted by the UK and Germany to the meeting of the Police Cooperation Working Party on 3-4 September 1998. These documents concern the controversial extension of telecommunications surveillance to mobile phones and the internet contributing to ENFOPOL 98.
Tony Bunyan, Statewatch editor commented:
"The European Ombudsman has done a great service for democratic standards in the EU by declaring that there cannot be whole categories of secret documents which are permanently excluded from public access.
The Council and the European Commission should now withdraw their proposal for the "space to think". Officials working for EU institutions are public servants and their work should be on the public record (subject only to specific and narrow exceptions). There can be no hidden influences in a democracy.
Another of the Ombudsman's Recommendations tackles access to documents where EU officials meet with non-EU states and organisations, in this case EU-US meetings. It cannot be right that the external relations of the EU in justice and home affairs, which can directly affect human rights and civil liberties, are excluded from public scrutiny. The same goes for development of the EU-FBI telecommunications surveillance plan.
The Ombudsman is sending a clear signal that the new code on access to EU documents must lead to a real step forward and not be used - as many in the Council and the Commission want - to hide thousands of documents from public access."
For further information contact:
Tony Bunyan on: 00 44 208 802 1882 or 00 44 207 254 3597
The European Ombudsman: 00 33 388 17 23 13
NOTES for EDITORS:
1. Tony Bunyan has been editor of Statewatch bulletin since
its launch in 1991 and is the author of "Secrecy and openness
in the European Union" (Kogan Page, November 1999). On behalf
of Statewatch he lodged six successful complaints against the
Council of the European Union over access to documents with the
European Ombudsman in 1996 - as a result of these cases the right
of citizens to take complaints to the European Ombudsman on access
to documents covering justice and home affairs was written into
the Amsterdam Treaty.
2. In 1998 Statewatch received an award from the Campaign for Freedom of Information for its work on access to EU documents.
In 1999 Statewatch received a "Champions of Privacy" award from Privacy International for its work exposing the EU-FBI telecommunications surveillance system.
3. Statewatch is a voluntary group founded in 1991 covering justice and home affairs and civil liberties in the European Union. It is comprised of journalists, academics, researchers, lawyers and community activists. Its network of contributors cover 12 European countries.
4. In November 2000 the European Federation of Journalists (EFJ) and Statewatch published "Essays for an Open Europe" by Tony Bunyan, Professor Deirdre Curtin (Utrecht University) and Aidan White (Secretary General of the EFJ). On 27 February 2001 the EFJ and Statewatch organised a working seminar on the new code of access in the European Parliament in Brussels.
5. The Statewatch website is the leading source of information in the EU on the new code of access to EU documents with all the background material including unpublished documents leaked to us. See:
(all the background documentation on the issue)
http://www.statewatch.org/secret/observatory.htm (all the key documents from the Council, Commission and European Parliament, full-text)
http://www.statewatch.org/news (news and analysis)
All the documentation, full-text:
Press release by the European Ombudsman on Statewatch's complaints:
"Ombudsman acts against Council secrecy"
Decision by the European Ombudsman on first complaint: 1st Decision
Decision by the European Ombudsman on second complaints: 2nd Decision
Statewatch response to the Council's answers: Statewatch
response to Council's responses
Council of the European Union, response to the 1st complaint: Council, 1st complaint
Council of the European Union, response to the 2nd complaint: Council, 2nd complaint
Statewatch's two complaints: Two complaints to the European Ombudsman
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