28 March 2014
Eurojust is responsible for encouraging and coordinating cooperation amongst the judicial authorities of the EU Member States. It was set up by a Council Decision in February 2002 and the College of Eurojust (its governing body made up of 28 national representatives) adopted a Decision on public access to documents in July 2004. This Decision was meant to follow the "principles and limits" stated in the Regulation on public access to EU documents: Regulation 1049/2001. However, it deviates substantially from the "principles" of Regulation 1049/2001 in a number of instances, for example by failing to provide a public register of documents (Article 11 of the Regulation).
On 22 October 2012 Statewatch submitted a complaint to the European Ombudsman against Eurojust concerning its access to documents policy: Statewatch complaint (pdf). On 19 November the Ombudsman sent the complaint to Eurojust: Ombudsman letter to Eurojust (pdf). However, as the Ombudsman had already launched an own-initiative inquiry into Eurojust in May 2012 the Ombudsman decided to close the Statewatch complaint but to include its substance in this inquiry: Closing Statewatch complaint: Eurojust (pdf).
As Statewatch had agreed that its complaint be closed, the Ombudsman stated in a further letter of 10 December 2012 that:
"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"
Ombudsman overall letter of 10.12.12 concerning his own inquiries and three Statewatch complaints (pdf).
The Ombudsman's own-initiative inquiry into Eurojust began in May 2012: Eurojust: Visit and Annexes (pdf) and this was followed on 16 January 2013 by the Ombudsman's Report on Eurojust (pdf).
The substance of Statewatch's complaint against Eurojust
Eurojust's role is the "management and coordination of investigations and prosecutions for which Eurojust is providing assistance" where more than one EU Member State is involved. It was set up in February 2002 by Council Decision 2002/187/JHA, of which Article 45 states that:
"On the basis of a proposal by the Administrative Director, the College shall adopt rules for access to Eurojust documents, taking into account the principles and limits stated in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents."
This Decision was amended in 2003 and 2009. The consolidated text (in Council document no: 5347/3/09 and in Article 39) contains the same section as above.
On 13 July 2004 the College of Eurojust adopted a Decision to adopt rules regarding public access to Eurojust documents (pdf).
Despite the statements in Article 45 (2002) and Article 39 (2009) that rules should be adopted "taking into account the principles and limits" [emphasis added] of Regulation 1049/2001 the rules adopted deviate substantially from the "principles" of Regulation 1049/2001. These deviations include:
Eurojust's Annual Report for 2012 (pdf) includes a section on public access to Eurojust documents which does give the total number of applications as 17 and states the reasons for refusal, where this was the case. There is no mention of the number of sensitive documents produced or held by the agency, nor of the requirement to establish a public register.
In general it is held that under the Lisbon Treaty the legal base for public access to documents is Article 15(3) of the consolidated version of the Treaty on the Functioning of the European Union. This new provision extends the public right of access to documents to all the Union institutions, bodies, offices and agencies.
The Lisbon Treaty provision, which came into force in December 2009, means that Eurojust is now subject to Regulation 1049/2001. In any case Eurojust is obliged to "take account" of the "principles and limits" in that Regulation. Under either interpretation, Eurojust is committing maladministration as regards access to documents.
Making available a public register of documents ensures that citizens and civil society can follow and understand what is being discussed and decided. By making available documents concerning the implementation of legislation it ensures that the activities of Eurojust are subject to public and parliamentary accountability. Access to documents is the life-blood of a democratic system and a public register of documents is crucial to this process.
These are cases of maladministration.
The Ombudsman's Report on 16 January 2013
The Ombudsman's report: Report on Eurojust (pdf) raises the same issues as those contained in Statewatch's complaint.
On the issue of 30 working days as distinct from 15 working days to respond to initial requests and confirmatory applications in Regulation 1049/2001, the Ombudsman recognises that Eurojust has some discretion but that they would need to show "specific and compelling reasons for derogating from the general rule".
On the failure of Eurojust in its Decision on access to refer to the right to go to the ECJ and the Ombudsman:
"the Ombudsman considers that it is in the interests of transparency that Eurojust expressly indicate the possibility of appeal in any reply to to a confirmatory application in which it refuses access or gives only partial access."
The Ombudsman notes that a very low number of direct requests for documents were received in 2011 (just 11) and given this a separate annual report, as required under Article 17 of Regulation 1049/2001, could be met by including a section in Eurojust's general Annual Report. Of course the small number of requests is a direct reflection of there not being a public register, meaning that people do not know what documents are held by Eurojust.
The Ombudsman also says that when a public register is established (see below) then the above Annual Report should contain details of the number of "sensitive documents" not recorded in the register.
When answering the Ombudsman's question on the failure to provide a public register, "Eurojust stated that it has no public register in the sense of Article 11 of Regulation 1049/2201 and that this Regulation does not apply to Eurojust."
The Ombudsman rejects this argument as the Decision setting up Eurojust notes an obligation to take "account of the principles and limits stated in Regulation 1049/2001" and the Ombudsman observes that "a public register of documents is one of the principles foreseen in the Regulation".
The Ombudsman also questions not recording "sensitive documents" (TOP SECRET, SECRET and CONFIDENTIAL) in a public register:
"the Ombudsman considers that Eurojust could include a reference to the existence of these documents on a public register, in a manner which would not identify their content (by, for example, using only a reference number)."
Questions are also raised by the Ombudsman over the refusal of access to documents under Article 4(3) of Eurojust's 2004 Decision where it relates to a matter on which decision has not been taken (the "space to think") on the lesser grounds that disclosure would "undermine Eurojust's decision-making process" as distinct from the principled ground in Regulation 1049/2001 that disclosure would "seriously undermine the institutions's decision-making process" (emphasis in original). If Eurojust wanted to keep this definition, the Ombudsman noted, then it needed to "justify expressly the concrete reason why it considered" that disclosure would "undermine" rather than "seriously undermine".
Eurojust responds to the Ombudsman's Report
On 30 April 2013 Eurojust responded to the Ombudsman's Report: Eurojust's response (pdf). In this Eurojust agrees to a number of changes but seeks to put off into the indefinite future crucial issues.
On the issue of a public register, Eurojust states that it is its intention "to have such a register for non-case related documents... in the near future." It can be expected that this will only contained a small proportion of the documents produced by or received by Eurojust. A precise date is needed.
However, Eurojust has a separate "case management system " (CMS) for "case-related documents" which is "only accessible to "National Members of Eurojust and those authorised". Eurojust goes on to state that in this regard a public registry was not envisaged, "nor is it contemplated in the future for case-related documents".
Regulation 1049/2001 does not distinguish between "non-case related" and "case-related" documents. However, it does provide for special rules concerning "sensitive documents" under Article 9 which should be applicable to Eurojust and other agencies. Moreover, it should be noted that Article 9(2) provides for each request for a "sensitive documents" to be assessed. In the case of "Restricted" documents, for example, this allows for an assessment of whether a document can be re-classified in order for it to be made accessible or whether "partial access" can be given (with sections blanked out). In short, "sensitive documents" cannot be treated as a class [block] of documents for which access is automatically refused.
Regarding the obligation under Article 17(1) of Regulation 1049/2001 to publish in an annual report the "number of sensitive documents not recorded in the register", there are two key issues.
First, the agency does not respond to the Ombudsman's suggestion that at the very least a reference number should be recorded in a public register.
Second, as to simply giving the number of sensitive documents not recorded in a public register, which they refer to as "the publicity of information on the number of sensitive documents not recorded" (emphasis added) Eurojust propose that:
"this will be included in the discussions linked to the process of redrafting Eurojust's rules on Public Access to Documents in the light of the outcome of the re-cast of Regulation 1049/2001."
This is utterly unacceptable. Eurojust should begin redrafting its rules on public access to documents immediately.
Eurojust knows full well that there has been an institutional "impasse" for over three years on the recasting of Regulation 1049/2001 and little prospect that this will be resolved before the European Parliament elections in 2014 when the process will start all over again.
In relation to the time limit for responding to requests for documents, Eurojust argues that it requires 30 days (as opposed to 15 days as laid down in Regulation 1049/2001) to respond to "case-related" documents and treats all requests the same as some may be "mixed requests" covering both "case-related" and "non-case related" documents. While accepting that 30 days may be needed for consulting national agencies for "case-related" documents we would argue that "non-case related" documents should be subject to the 15 days rule even if this means sending two responses to the applicant rather than one.
Eurojust have agreed to expressly inform applicants of their right to appeal to the ECJ or the Ombudsman in cases of refusal of access following a confirmatory application. However, the agency's response goes on to say:
"Eurojust undertakes to explicitly indicate these appeal options in its future revised Access to Documents Decision"
Eurojust should agree to do this immediately.
Europol accepts that it should change Article 4(3) of its Decision on access to match Article 4(3) of Regulation 1049/2001 so that refusal to documents can be granted where it would "seriously undermine Eurojust's decision-making process".
However, it again says this will be done "in its future revised decision on Access to Documents".
Eurojust should agree to do this immediately.
It would appear that Eurojust are hoping to put off acting on listing the number of sensitive documents not recorded in its public register (Article 17(1) of the Regulation), making it expressly clear that applications have a right of appeal to the ECJ and the Ombudsman, and changing its definition of Article 4(3) until "the process of redrafting Eurojust's rules on Public Access to Documents in the light of the outcome of the re-cast of Regulation 1049/2001" is complete.
Tony Bunyan, Statewatch Director, comments:
"It is quite extraordinary that Eurojust has been allowed to operate for nine years with a Decision on public access to the documents which deviates substantially from the principles of Regulation 1049/2001.
"And even now, following the Ombudsman Report, it seeks to put off rectifying three critical problems until some undefined point in the distant future."
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