EU: New moves on openness (feature)
01 July 1997
How the Council switched on Statewatch's complaints
On 26 March the EU Council of Ministers rejected a request by the European Ombudsman to respond to six complaints lodged by Statewatch's editor, Tony Bunyan, on access to documents (see Statewatch, vol 6 no 6 & vol 7 nos 2 & 3). By 20 June the Council did a U-turn and sent its comments on the complaints to the Ombudsman.
The issue dividing the Council of Ministers in March was whether the European Ombudsman was empowered to investigate complaints concerning justice and home affairs - the intergovernmental "third pillar" of the EU. Six governments voted in favour of replying to the Ombudsman: Austria, Belgium, Denmark, Finland, Netherlands and Sweden. Nine voted against: France, Germany, UK, Ireland, Italy. Spain, Portugal, Greece and Luxembourg. On 9 April the European Ombudsman replied asserting that the complaints had been declared admissible under the statute governing his duties and called again on the Council of Ministers to respond.
The Council's Working Group on General Affairs (the GAG group) held four meetings on 28 April, 26 May, 3 June and 6 June. Their report from the 6 June meeting went to COREPER (the committee of permanent representatives of EU member states) on 12 June and was adopted by the Transport Council on 17 June. The result of the meeting of the GAG group on 6 June shows that the UK and Ireland switched sides to join the six already in favour of responding to the European Ombudsman. A number of Declarations brought out the divisions in the Council of Ministers.
One of the substantive Statewatch complaints concerns the denial of access to documents where the Council says that we have made "repeat applications" (Article 3.2 of the 1993 Decision) - this means that every new application can be treated as a "repeat application" according to the Council, whereas we maintain that every request is for different documents. Similarly the Council has used the term "very large document" in the Decision on access to mean "very large number of documents" to refuse access. On 12 June only three member states - Belgium, Spain and France - gave an "Explanation" saying: "These delegations share the Council's interpretation with regard to repeat applications". This followed "Explanations" on 10 June by the UK, Sweden and the Netherlands that:
"they recall that they do not agree with the interpretation made by the Council of Decision 93/731/EC with regard to "repeat applications" and "very large documents" and believe the Council should have replied in substance to Mr Bunyan's requests."
Ireland made an "Explanation" also stating that "it does not share the Council interpretation of Decision 93/731/EC with regard to "repeat applications" and "very large documents".
While Denmark gave a substantial "Explanation" supporting the UK, Ireland, Sweden and the Netherlands and saying:
"Denmark finds it questionable that the Council states its point of view on each of Mr Bunyan's complaints, since they concern matters on which in several cases there has been disagreement between Member States. It may be pointed out in this context that Denmark voted against the Council's reply in the cases relating to complaints 1, 5 and 6. Regarding complaints 1 and 5, Denmark in addition gave explanations of its vote which in both cases concern precisely those circumstances of which Mr Bunyan complains.. "
Statewatch's response to the Council's comments
On 24 September Statewatch sent a 13-page response to the Council's comments on the six complaints, this response is now being sent to the Council for their further response.
Statewatch's response sets out in its introduction the key issues concerning the Council's practice: 1) it questions that Council's contention that the validity of its decisions under Title VI (justice and home affairs) cannot be questioned:
"It appears that, unlike all of the member states of the European Union, t