Statewatch takes Council to the Ombudsman (feature)
01 November 1996
Introduction
On 27 November Statewatch, through its editor Tony Bunyan, lodged five complaints against the Council of Ministers - the 15 EU governments - because of its refusal to give access to documents concerning the workings of the Council of Justice and Home Affairs Ministers, the K4 Committee, and its Steering Groups. A further complaint was lodged on 5 December.
The complaints charge the Council with a series of decisions which constitute maladministration including misapplying the Council decision on public access to documents, refusing to supply information, and abuse of power. All the complaints concern measures or reports already adopted or considered.
John Carvel, of the Guardian newspaper, who won a case in the European Court of Justice against the Council over access to documents in 1995 said:
"The Ombudsman will be appalled at the way the Council has broken its own rules in a paranoid attempt to maintain official secrecy. Mr Bunyan has been treated disgracefully.
His experience calls into question the good faith of those politicians and diplomats who declare support for transparency in principle, but work behind the scenes to defeat it in practice."
Tony Bunyan commented:
"The Council of Justice and Home Affairs Ministers decides policies and practices in secret which cannot be amended and are not subjected to open, democratic debate. It is time to again challenge the culture of official secrecy advocated by some EU Member States before it is too late."
The decision to take the six complaints to the European Ombudsman rather than to the European Court of Justice was taken because it is quicker, free and open, and invloes the European Parliament should the Council reject the decisions of the Ombudsman.
The European Ombudsman was set up in 1994 to investigate cases of maladministration concerning European community institutions and bodies. The first European Ombudsman, Mr Jacob Söderman, was elected on 12 July 1995.
The timetable for dealing with these complaints will be as follows: the Ombudsman will reach a decision on the admissiblity of the complaints in January 1997 after which they will be sent to the Council. The Council then has three months to respond - by the end of April. This response will be sent to Statewatch who will have one month to respond (May 1997). The Ombudsman then considers the original complaints, the Council's response and the complaintants' response and seeks to mediate an agreed outcome - at this stage the Ombudsman can call for copies of reports and interview Council officials. Should the Ombudsman decide in favour of the complainant and against the Council's final response he would officially declare a case of maladministration against the Council and report the matter to the European Parliament for them to take further action.
This feature looks at the background to the complaints, the Council's review of the report from the Secretary-General on 6 December, and the issue of secrecy versus democracy.
The complaints
The six complaints are:
1. The decision of the Council to supply only 5 of 14 copies of the Minutes of the K4 Committee (see Statewatch, vol 6 no 3).
2. Concerns three instances where the Council appears to have destroyed - "not conserved" - documents which are of "historical value".
3. Concerns the failure of the Council to maintain, and make publicly available, a list of the
decisions taken under the "third pillar" (justice and home affairs).
4. Challenges the Council's assertion that the Presidency of the European Union is a separate "body" from the Council of the European Union.
5. Concerns the Council's failure to give specific reasons for denying access to each document, using arguments which have no basis in the rules, and refusing documents "very recently adopted."
6. The final complaints concerns the decision of the Council to treat four separate requests as one request and to reject t