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Statewatch complaints to European Ombudsman

28 March 2012

At a press conference held in the European Parliament in Brussels 11 July 2000 Statewatch editor Tony Bunyan launched two new complaints with the European Ombudsman concerning the Council of the European Union's (the 15 EU governments) failure to give access to documents and to provide information. The press conference speakers were Heidi Hautala MEP, President of the Green/EFA Group, Glyn Ford MEP (Socialist, PSE), Graham Watson MEP (ELDR, chair of the Citizens' Freedoms and Rights Committee and Renate Schröder (European Federation of Journalists).

The first is a case which Statewatch has already successfully taken to the European Ombudsman but which the Council then tried to get round by pretending that the General Secretariat of the Council is a separate institution to the Council of the European Union. The documents in question are the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" set up under the Transatlantic Agenda.

The second concerns the Council's failure to supply a full list of documents for a series of justice and home affairs working parties. This complaint draws attention to the Council's policy excluding certain documents, for example, SN documents (sans numero), meeting documents and room documents, from the agendas, outcome of proceedings and from the public register of EU documents.

Tony Bunyan commented:

"The first of these cases tackles access to documents where EU officials meet with non-EU states and organisations, in this case EU-US meetings. It cannot be right that the external relations of the EU in justice and home affairs, which can directly affect human rights and civil liberties, are excluded from public scrutiny.

The second, concerns the deliberate policy of the Council to exclude from public access categories of documents which form part of the decision-making process. They are not even on the Council's public register of documents.

Effective public access to documents is one of the cornerstones of any democratic system, it ensures that the executive is made accountable not just to parliaments but also to the citizens. It ensures that civil society can inform itself, debate the issues and make its views known.

The European Parliament is now considering the new measure on access to documents put forward by the Commission. It is essential this leads to a real step forward and not - as some in the Council and Commission would like - be used to hide whole categories of documents from access and public view."

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For further information contact: Statewatch office: 00 44 208 802 1882

NOTES for EDITORS:

1. Case 1: The New Transatlantic Agenda (NTA) and the Joint EU-US Action Plan signed by the European Union and the United States in Madrid on 3 December 1995 contained substantial proposals for cooperation on justice and home affairs issues.

2. Tony Bunyan has been editor of Statewatch bulletin since its launch in 1991 and is the author of "Secrecy and openness in the European Union" (Kogan Page, November 1999). On behalf of Statewatch he lodged six successful complaints with the European Ombudsman in 1996 - as a result of these cases the right of citizens to take complaints to the European Ombudsman on access to documents covering justice and home affairs was written into the Amsterdam Treaty.

3. In 1998 Statewatch received an award from the Campaign for Freedom of Information for its work on access to EU documents.

In 1999 Statewatch received a "Champions of Privacy" award from Privacy International for its work exposing the EU-FBI telecommunications surveillance system.

4. Statewatch is a voluntary group founded in 1991 covering justice and home affairs and civil liberties in the European Union. It is comprised of journalists, academics, researchers, lawyers and community activists. Its network of contributors cover 12 European countries.

5. Statewatch's "Secret Europe" website contains all the background material on access to documents including unpublished documents leaked to us over the last year. It is on:

http://www.statewatch.org/secreteurope.html

Summary of the new Statewatch complaints

Complaint no 1:
Refusal to give access to the agendas of the "Senior Level Group" and the "EU-US Task force"

On 24 June 1997 Statewatch applied for the agendas of the "Senior Level Group" and the "EU-US Task Force" set up under the Transatlantic Agenda in December 1995 [see "Notes"].

The Council refused to give access to the agendas, both on the initial application and on appeal (confirmatory application) on the grounds that they were drawn up by three "authors" (joint authors), the Council, the European Commission and the US authorities.

On 8 November 1997 we drew the issue to the attention of the European Ombudsman who took it up with the Council. On 30 June 1998 the Ombudsman gave his decision stating that the Council was a "co-author" of the documents and that therefore they came under the Decision on access to documents. The Ombudsman made a "critical remark" about the Council's position and called on it to "reconsider" its original decision.

On 8 July 1998 Statewatch wrote to the Council for copies of the document. Again the first response, from Mr Trumpf (the Secretary-General), said that the original decision of the Council still stood and on 27 August 1998 a confirmatory application (appeal) was sent.

On 28 September 1998 the Council of Ministers replied. Not wishing to have a confrontation with the Ombudsman the Council did "reconsider" its original decision and come up with entirely different reason for refusing access - a reason that they had not raised with the Ombudsman or Statewatch.

The Council said that the agendas were not "held by the Council.. but only by the General Secretariat" and therefore did not come within the 1993 Decision on access to documents. The Council thus now tried to argue that the General-Secretariat of the Council was a different institution to the Council.

Previously the Council had tried to refuse Statewatch access to documents on the grounds that the "Presidency" was a different institution to the Council of the European Union. When challenged, after a complaint to the Ombudsman, they backed down and agreed they were one and the same institution.

The quite extraordinary decision of the Council of Ministers in September 1998 is not only indefensible it challenges the authority of the Ombudsman - who had raised the issue with them before making his formal Decision.

Notes for editors

1. The "Senior Level Group" and the "EU-US Task Force" created to implement the NTA and the EU-US Joint Action Plan are only two of numerous external meetings in which EU (or member state) officials participate. Others include the G8 Senior Experts Group on Transnational Organised Crime, "sherpas" and "sous-sherpas" meetings which prepare the G8 Justice and Interior Ministers meetings and ILETS (International Law Enforcement Telecommunications Seminar) which has set out the global "Requirements" for the interception of telecommunications which have been adopted by the EU and are now in the process of being incorporated into law in the member states (see Background Note on page 7)

2. Statewatch has been monitoring EU justice and home affairs and civil liberties issues since 1991 and therefore has an interest in gaining access to documents concerning external as well as internal policies and practices.

Complaint no 2: failure to provide information - a list of documents considered at meetings of the Council's working parties and deliberate policy to exclude categories of documents from agendas, outcomes and the public register

When the Council's public register of documents on the internet went online, on 1 January 1999, the Council issued the following instruction:

"Confidential, Restreint, SN and non-paper documents will not be included in the public register. For this reason, from now on these documents will not be mentioned in official Council documents (in particular: on provisional agendas and in outcomes of proceedings)."(see footnote (1))

There is no justification for the deliberate exclusion of SN (2) and non-paper documents (and meeting room documents - "DS", Documents de Séance - or "Room documents"), from agendas, outcomes of proceedings and the public register. Moreover, classified documents are now meant to be included in the public register and are not.

As a result of making applications for documents since 1994 Statewatch became aware that:

1. many documents listed on the outcome of proceedings were not included on the agendas of these meetings.

2. that a number of documents, for example, Room documents and SN (unnumbered) documents, were generally not listed on the agendas or on the outcome of proceedings.

3. that some categories of documents were not being included on agendas or outcomes as a matter of policy.

The complaint concerns two instances where the Council ignored our requests for information, namely to provide a "list of documents" considered at meetings of Council working parties.

On 24 March 1999 the Council said:

"The Council Secretariat cannot identify the documents you requested, if they do exist. The only instrument enabling it to identify such documents are the agendas of the respective meetings which, to my knowledge, have already been sent to you, or else can be requested by you. This also applies to the outcome of proceedings of the relevant meetings."

In our confirmatory application we pointed out that:

"it may well be the case that documents in the categories set out above (SN docs, meeting and room documents etc) are not listed on the agenda nor referred to in the "Outcome of proceedings". However, such documents constitute part of the decision-making procedure of the Council and are in the possession of the Council and therefore fall within the Decision. Yet the Council is arguing that it is unable to "identify such documents".

On 24 March 1999 the Council provided copies of the documents listed in the Outcome of proceedings for the requested period which were not on the agendas of the specified meetings. A total of 79 documents were listed of which access was refused to 15 documents.

No list of documents was provided and the issue of providing a list of documents considered was not addressed.

A similar instance

In January 1999 we applied for all the documents (Restreint, Limite, non-paper, Meeting document, Room document, SN document and any other documents etc) considered/put before the meeting of the Police Cooperation Working Party (Experts' meeting - Interception of telecommunications) held on 3-4 September 1998.

This meeting was highly significant as it had before it a new proposal, ENFOPOL 98, to extend the interception of telecommunications to the Internet and to satellite communications, and ENFOPOL 87, to similarly amend the "Requirements", adopted by the EU on 17 January 1995, placing obligations on network and service providers to facilitate interception. It also had reports from the chair of the IUR (International User Requirements) and the chair of the STC (Standing Technical Committee) on meetings in Rome on 14, 15 and 16 July 1998 plus the new "Requirements.. established at the various technical working party meetings, ILETS and the recent meeting in Rome in July 1998." (3)

In our confirmatory application we observed that there were "five very substantial issues on the agenda" but that it appeared that this full two-day meeting (starting at 10.00 am on 3 September and 9.30 am on 4 September 1998) only had 1 document (10102/98, 4 pages) before it.

The Council replied 8 June 1999 having examined the outcome of proceedings and "identified" two more documents which were provided (including ENFOPOL 98).

No list of documents considered was supplied nor was the issue addressed.

The complaint

In neither of these two cases did the Council indicate that any further inquiries had been carried out to establish which other documents were placed before the respective meetings. The Council neither supplied a list of documents nor even addressed the issue. (4)

The complaint is therefore that in both these requests for information the Council failed to provide the information requested and that this is a case of maladministration.

Background on the New Transatlantic Agenda

Report of the Senior Level Group to the EU-US Summit, Queluz, Portugal, 31 May 2000:

"In February, an informal EU-US meeting of high-level officials took place on Justice and Home Affairs (JHA) issues in Brussels in the framework of the NTA task force meeting. There were several ad hoc expert meetings on the question of visas and on the Action Plans on Migration of the High Level Working Group. Regular exchanges continued within the EU's JHA Council structure (CIREA, CIREFI, the Council Working Group on criminal matters, the Council Working Group on mutual legal assistance, the Multidisciplinary Group, as well as on asylum and migration matters). In February, the US participated, as an observer, in an interinstitutional conference on drug policy in Europe, organized by the EU to consider how to implement the EU drugs strategy (2001-2004); in May, the US met the EU CFSP Drugs Group in troika format. In March, the EU and US successfully co-sponsored several resolutions during the Commission on Narcotic Drugs in Vienna. We worked together in developing the World Anti-Doping Agency (WADA) in accordance with the Sydney Communique. The EU-US coordinated information campaigns to counter trafficking in women in Hungary and Bulgaria, and information distribution is now taking place."

An example of EU-US cooperation?

JHA Council authorises Europol to start negotiating the exchange of data

The meeting of the Justice and Home Affairs (JHA) Council in Brussels on 27 March adopted, without debate, a "Council Decision" authorising Europol to enter into negotiations with non-EU states and bodies on the two-way exchange of data (see Statewatch vol 8 no 5). The report was on the JHA Council agenda in December 1999 but could not be adopted due to a scrutiny reservation by the Netherlands (that is, it had not been cleared by the Dutch parliament) - which was later withdrawn. The UK parliament, however, was not consulted over the adoption of the decision nor was the European Parliament. The UK parliament had been consulted on an earlier draft of the report prepared by the Europol Management Board (see Statewatch, vol 9 no 5) but this report differed in one major respect, namely the list of countries to be approached. The first list is mainly comprised of EU applicant countries and also included: Canada, Iceland, Norway, Russian Federation, Switzerland, Turkey, USA. The adopted decision added the following countries (see footnote): Bolivia, Colombia, Morocco, Peru

The addition of these countries to the list of the "first wave" of states to exchange data with Europol is to say the least controversial.

The "Decision" says that negotiations can only begin after the Management Board of Europol (national EU Interior Ministry officials) have "consulted" the Joint Supervisory Body (JSB) for Europol (comprised of national EU Data Protection officials). The Director of Europol will forward these reports to the JHA Council for its unanimous agreement to proceed with opening negotiations for each non-EU state or agency. The UK House of Commons European Scrutiny Committee has expressed some concern over this arrangement:

"There must.., however, be a question about the extent to which the Europol Management Board will take account of the JSB's views as expressed to it during consultation."

This is not the only concern. The sole criteria set by the Council Decision only covers:

"the law and administrative practice of the relevant third States and non-EU related-bodies in the field of data protection..."

Important though data protection considerations are, there is no mention here (or in the draft "model agreement") for the law and practices of these states (and potentially numerous agencies within them) on human rights and civil liberties - for example, what are rights of "suspects", what are the standards of evidence and what safeguards are there against recording (and transmitting) evidence gained by oppressive means?

The Decision says that the JHA Council has to be satisfied that "there are no obstacles to the start of negotiations.. in the field of data protection.." It is not at all clear what might constitute an "obstacle". A "Council Declaration" attached to the "Decision" says that priority should be given to Iceland, Norway, Switzerland and Interpol and to the "accession candidates". These new and established democracies are not without potential "obstacles". The recent Commission reports on the accession process express concern at the progress towards meeting "EU standards".

Once the JHA Council has agreed that negotiations should start, the only check laid down is for a six monthly report (starting in January 2001) to the Management Board of Europol.

The draft Model agreement to effect the exchange of data leaves many loop-holes for the receipt and use of data of a highly questionable nature. For example, Europol itself is to judge whether the data (which may be hard-fact, "soft-intelligence" or suspicions) has been gathered in "obvious violation of human rights" (see Statewatch, vol 8 no 5 for a detailed critique of this draft agreement). Data supplied to Europol which is then deleted or corrected by the supplying non-EU state/agency can still be retained and used by Europol if it has "further need" of it.

Footnote: At a meeting of US Senior Officials and the EU Article 36 Committee (which coordinates work on policing, customs and drugs) the US delegation said: "Latin America should be the next area of cooperation" [between the EU and US]. They then named Bolivia, Colombia and Peru as key targets of US anti-drugs trafficking initiatives (see Minutes of the meeting with US Senior Officials in Brussels on 16 February 2000, ref: 6245/00).

Sources: Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, COREPER to Council, ref: 13108/99 EUROPOL 46, 23.11.99; Draft Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, COREPER to Council, ref: 11854/2/99 REV 2, 27.10.99; Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, ref: 13107/99, EUROPOL 45, 19.11.99; Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, General Secretariat to COREPER/Council, ref: 6456/00, EUROPOL 3, 25.2.00; Draft Model-agreement cooperation with Third States, ref: file no: 3710-01r1, Europol Management Board, 13.8.99; Agreements between Europol and third states and non-EU related bodies, House of Commons, European Scrutiny Committee, 29th Report, 9.11.99.

Source: Statewatch bulletin, vol 10 no 2 March-April 2000

1. The classification "RESTREINT" is the lowest level of EU classification and is defined as: "information unauthorised disclosure of which would be inappropriate or premature."

2. SN stands for "sans numero", unnumbered documents - which in practice are usually numbered.

3. The result of this and subsequent meetings was that the then draft Convention on Mutual Legal Assistance was amended to meet the new demands of the law enforcement community. This development also required substantial changes to member states' national laws on the interception of telecommunications, for example, the Regulation of Investigatory Powers Bill (R.I.P. Bill) in the UK.

4. Under the Ombudsman's recommended "Code of Good Administrative Behaviour" (18 July 1999) Articles 18.1 and 18.2 state that officials should "state the grounds" and "legal basis of the decision" and avoid making decisions "which do not contain individual reasoning". Article 22 states that officials should "provide members of the public with the information they request".