EU secrecy: OMBUDSMAN: The Statewatch case
01 November 1997
Statewatch has won the first of six complaints lodged by its editor Tony Bunyan with the European Ombudsman against the EU Council of Ministers over access to Council documents.
On 14 November the Ombudsman, Mr Jacob Soderman, wrote to Statewatch to say that the first complaint had been closed as the EU Council had agreed, as a result of Statewatch's complaint, to change its practice of "not conserving" (destroying) the agendas of meetings of Steering Groups and Working Parties held under the Council of Justice and Home Affairs Ministers.
The Ombudsman is now seeking a friendly solution to the two other "minor" complaints: a) the failure of the EU Council to maintain an up-to-date list of decisions for each Council of Ministers (currently the Council is only obliged to compile such a list at the end of each calendar year) and b) the Council's contention that the EU Council and the Presidency of the EU Council are separate institutions.
At the end of November the Ombudsman wrote to the Council inviting them "make it clear that it does not consider its Presidency to be "another institution", separate from the Council, for the purposes of Article 2.2 of the Council Decision". It transpired that the General Secretariat of the Council felt unable to make this commitment and has put the question out to each of the 15 EU Member States for a decision by the end of January 1998.
However, the three "major" complaints remain outstanding. It is expected that the Ombudsman will be writing to the EU Council of Ministers at the beginning of January and that the issues they raise will come to a head during the UK Presidency of the EU. Statewatch's complaints about the Council's practice in applying the Decision on access to documents has already led to a number of significant changes - these include: no longer requiring applicants to examine documents "on the spot" in Brussels and the inclusion in the Amsterdam Treaty of clause 138e which establishes the right of the Ombudsman to consider complaints concerning denial of access to documents concerning justice and home affairs.
At a Press Conference in Brussels on Monday 8 December to launch the UK Presidency the Foreign Secretary, Robin Cook, said that making the EU more open and transparent, "especially in the field of justice and home affairs", was one of the main objectives of their programme. This would include giving more information to national parliaments and to the European Parliament, and "putting a register of documents on the Internet". It is understood that this register will only include documents which are classified "Restricted" and "Limite" ("Limite" is not a classified category), and exclude "Secret" and "Confidential". Whether the register is made public will depend on the UK's persuasive powers over Spain and France who have always opposed openness. One official from an EU delegation is quoted as saying: "The Council of Ministers is not a public library".
A public register would be major step forward, but it will still mean applications for access to the actual documents facing the same kind of battles which Statewatch has experienced.