04 December 2019
All the missions and operations launched under the EU's common and security and defence policy (CSDP) have been ordered by the European External Action Service (EEAS) to adopt policies on public access to documents by February 2020, but their enforcement will be voluntary and lie beyond the reach of the Court of Justice of the EU.
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Opacity at Operation Sophia
The change in policy has come about following a complaint from a journalist about a lack of transparency at Operation Sophia, the EU's Mediterranean military mission against migrant smuggling.
They contacted the operation to make a request for access to documents and were told that EU legislation on access to documents did not apply to the mission, because it is not formally considered an EU institution, body, office or agency.
The journalist filed a complaint with the European Ombudsman, arguing that this situation created "confusion and legal uncertainty. The lack of clarity as to whether Operation Sophia falls within EU law creates uncertainty as regards how the Operation can be held accountable for its actions," according to text cited in the Ombudsman's decision (link).
The Ombudsman then raised the issue with both the European External Action Service (EEAS) and the operation itself. The latter subsequently committed to drafting "a policy on transparency and accountability" (link to pdf) which took effect on 25 July 2019, four days after the Ombudsman's enquiry was closed.
The policy "takes as a reference and commits to apply by analogy the principles enshrined in the Regulation (EU) No 1049/2001," as well as a decision by the EU's foreign policy chief on access to documents.
A broad impact
The Ombudsman's decision in the Operation Sophia case will have a significant effect - the EEAS subsequently told all CSDP missions and operations to adopt policies on access to documents by February 2020, "as a matter of good administrative practice", according to an EEAS spokesperson.
That requirement will cover almost 20 missions and operations, including the EU Rule of Law Mission in Kosovo, the EU Border Assistance Mission in Libya, the EU Advisory Mission in Iraq and the EU Training Mission in Somalia.
This change "is good in terms of the legitimacy of the EU generally and for these missions," said an official at the European Ombudsman familiar with the case.
The decision to introduce access to documents policies for every CSDP mission "reflects a realisation on the part of the EEAS and the missions that they can't ignore the issue of transparency and the benefits it brings for them," they continued.
However, it remains the case that none of the missions are formally covered by the rules laid down in the EU legislation on access to documents - as the European Ombudsman's decision in the Sophia case made clear, the Mediterranean mission "is not itself an EU body, and is not formally subject to EU access to documents rules."
This means that cooperation with the Ombudsman in relation to any complaints about the handling of access requests will be voluntary, and it will not be possible for the Court of Justice to handle any cases regarding the compliance of CSDP missions with the new rules.
Nevertheless, said the Ombudsman official, it's "the best we could hope for. We would consider this to be a good outcome."
In principle, the new rules will introduce at least the possibility of more transparency regarding the activities of CSDP missions. However, any such transparency will remain dependent on the good will of those missions.
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