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Statewatch openness case leads to landmark decision

28 March 2012

Council agrees to keep copies of all documents and to list them in 'Outcomes of Proceedings'

As a result of the European Ombudsman's Special Report to the European Parliament on a case from Statewatch, the Council of the European Union has agreed that all SN documents, Room documents etc considered at its meetings will be listed in the "Outcomes of proceedings" (see Statewatch, vol 11 no 6). This landmark decision will, by implication, also apply to meetings of the European Commission and the European Parliament too.

The Ombudsman said in his Special Report that the new Regulation that came into effect on 3 December 2001 obliged the three institutions to place all documents on their public registers. In this case the Council:

"should maintain a list or register of all documents put before the Council and make this list or register available to citizens"

Although the Council accepted a Recommendation from the Ombudsman to this effect he said in the Special Report that its response:

raise doubts as to whether the draft recommendations will indeed be implemented.

For this reason the Ombudsman referred the issue to the Petitions Committee of the European Parliament.

The Ombudsman also referred to the Committee a second issue raised by Statewatch. This concerned a meeting of the Police Cooperation Working Party (Experts meeting - Interception of telecommunications) in September 1998. This was the meeting that discussed the infamous ENFOPOL 98 proposal on the interception of communications. The Outcome of Proceedings list five Room documents which the Council refused to supply - they claimed all the documents had been sent when they had not.

The rapporteur in the Petitions Committee was Astrid Thors (ELDR, Liberal group) and the Ombudsman's Special Report was discussed at its meeting on 23 May 2002. Mr Hans Brunmayr, Deputy Director-General, attended for the Council and discussed the background to the complaints.

A second meeting of the Petitions Committee on 20 June was attended by Mr Brunmayr and Tony Bunyan, Statewatch editor. In the meeting Mr Brunmayr agreed that the Council would reconsider the earlier request for documents from the Police Cooperation Working Party - indeed the Council had mistakenly been responding to a completely different request which led to some confusion - and would put forward a proposal that a list of all the documents considered at Council meetings or its preparatory meetings would be attached to the "Outcome of Proceedings".

On 17 July Mr Brunmayr wrote to Statewatch on the first issue. The Council agreed that "Notes" (Meetings documents) had been considered from the German and UK delegations. As the General Secretariat of the Council did not have copies the delegations were "consulted".

The German Ministry of the Interior no longer has the note", the Council said, and the "United Kingdom Home Office no longer had copies of its notes". This refers to six "Meetings documents" which:

"UK and Germany submitted meetings documents 1-6, introducing the telecommunications interception requirements with reference to new technologies established by these groups and other technical working parties" (Outcome of Proceedings)

The reference to "these groups" is to "various technical working parties, ILETS and the recent meeting in Rome in July 1998"

Thus none of the missing documents were available. However, in its reply the Council said:

"In 1998, the relevant department of the Council Secretariat did not systematically keep in its archives all the room documents submitted by delegations. Measures have in the meantime been taken to remedy this" (emphasis added).

The importance of this new Council practice - that all Room documents should be archived in future - is closely related to Statewatch's second complaint concerning the failure to maintain (and supply) lists of documents discussed at Council meetings.

On 24 July Mr Brunmayr wrote to the rapporteur, Astrid Thors, on the issue of maintaining list of all documents considered at Council meetings as follows:

"I have the pleasure of informing you that, in the light of the Ombudsman's Special Report, all Directors-General of the Council Secretariat have received the following instructions:

- all texts submitted to the Council or its preparatory bodies and which affect the decision-making process or reflect the state of work regarding a certain dossiers, shall be produced as ST (Standard) documents. In conformity with the existing internal rules for the establishment of Council documents (called "Workflow"), the references of all these documents will be automatically entered in the Council's Public Register;

- all "room documents", "non-papers" and the like submitted during meetings of the Council or of its preparatory bodies shall be mentioned in the "Outcome of Proceedings" of those meetings or in a list to be annexed thereto."

These two decisions should mean that all documents circulated/discussed at all Council meetings are archived and that a list of them will be included at the back of all "Outcomes of Proceedings" (but see below).

The report adopted by the European Parliament at its plenary session on 18 December 2002 is unfortunately quite inaccurate as it describes the state of play before the meeting of the Petitions Committee on 20 June. Anyone reading the report would therefore not know the true impact of the Council's commitment as there is no reference to the two letters from Mr Brunmayr.

However, the Resolution does include a request to the Council to report back to the parliament in six months time (ie: by June 2003) on the "concrete measures" taken to implement the Secretary General's decision.

Tony Bunyan, Statewatch editor, comments:

"The two decisions of the Council taken together - to keep copies of all documents and to make a list of all documents discussed available - is a major breakthrough for openness. Moreover, this same principle applies by implication to other EU institutions like the European Commission who in future will have to keep copies of all documents discussed at all its meetings and make a list of them available to citizens"

Background documentation

1. Special Report by the European Ombudsman on the Statewatch case referred to the European Parliament: Special Report

2. Letter from Mr Brunmayr to Statewatch: Letter 1

3. Letter from Mr Brunmayr to Astrid Thors MEP: Letter 2