Statewatch complaints to the European Ombudsman regarding the transparency obligations of Frontex, Europol and Eurojust
Statewatch complaints & Ombudsman's own initiative Inquiry
On 22 October 2012 Statewatch submitted three complaints to the European Ombudsman against Europol, Eurojust and Frontex concerning their policies on access to documents as laid down in EU Regulation 1049/2001. However, as the Ombudsman had already launched an own-initiative inquiry into the three agencies the Statewatch complaints were closed. By letter on 10 December 2012 the Ombudsman stated that as Statewatch had agreed that its complaints should be closed:
"you [Statewatch] would be informed of the Ombudsman's further steps in his own-initiative inquiries concerning Europol, Frontex and Eurojust and would be given the opportunity to submit observations on the replies received by the Ombudsman."
Tony Bunyan, Statewatch Director comments:
"Access to documents is the lifeblood of accountability and democratic standards so why has it taken nine, seven and ten years respectively for these Agencies to start coming into line with EU law on public access to documents?
"Who is responsible for the failure to ensure compliance with EU law? Is it the European Commission which, since December 2009, has been charged under Article 17 of the Lisbon Treaty with ensuring the application of EU law?"
"It is high-time that these three agencies were made fully accountable to EU law and to the public by adopting and fully implementing the right of access to documents. I look forward to the Ombudsman re-visiting these complaints."
Overall "state of play" - Europol
Europol was set up in 1996 and is now governed by a Council Decision passed in 2009. This states that Europol must "take into account the principles and limits" of Regulation 1049/2001 on public access to documents.
The Statewatch complaint against Europol raised six issues. The agency has accepted the Ombudsman's Recommendations to comply with four of them. Its response in two instances is unclear. However,the "planned for completion by the end of 2013" for launching its public register of documents is overdue.
Overall "state of play" - Eurojust
Eurojust was set up in 2002 and was obliged to follow the "principles and limits" of the EU Regulation on public access to EU documents. The Statewatch complaint against Eurojust set out five issues where these "principles and limits" have been breached in Eurojust's 2004 Decision on access to its documents, which implements the agency's rules based on the EU Regulation.
None of the five issues raised by Statewatch have been addressed. In three instances, in response to the Ombudsman's Recommendations, Eurojust seeks to put off any revision of its Decision on access to its documents "in the light of the outcome of the re-cast of Regulation 1049/2001" - this in the full knowledge that discussions between the Council and the European Parliament (EP) have been in a stalemate for the past four years and that any revision of 1049/2001 is unlikely until years after the EP elections in 2014. POSTSCRIPT: The Eurojust Annual Report for 2013 (pdf) makes no reference at all to the Ombudsman inquiry.
Tony Bunyan, Statewatch Director, comments:
"Even now, following the Ombudsman's report Eurojust seeks to put off rectifying these three critical changes until some undefined point in the distant future."
Overall "state of play" - Frontex
The Ombudsman closed his own-initiative investigation/complaint against Frontex remarking that he welcomes the fact that Frontex are revising the Decision of the Management Board, dated 21 September 2006, implementing its policy on public access to its documents and:
"He reminds Frontex of the need to implement fully the provisions of Regulation 1049/2001 and in particular that its register should include a list of sensitive documents. He also requests Frontex to send the revised Decision by the end of March 2014." [emphasis added]
None of the five issues concerning Frontex originally made by Statewatch have been addressed - we will only know to what extent they are met when Frontex responds in March 2014. POSTSCRIPT: The Frontex Work Programme for 2014 (pdf) makes no reference whatsoever to revising its Managment Board Decision on access to documents nor to introducing a public register of documents.
Tony Bunyan, Statewatch Director, comments:
"Frontex has been obliged to comply with the EU Regulation on public access to documents since 2004 under the Regulation that created the agency. For nine years they have simply ignored this obligation and only now are they being called to account."
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