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Statewatch wins two new complaints: European Ombudsman decision breaches "space to think"

01 March 2001

In a landmark decision the European Ombudsman has backed a complaint lodged by Statewatch and told the Council of the European Union that it has to:

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

This means that thousands of documents (SN documents - sans numero - Room documents, Meetings documents, Non-paper etc) not listed on the agendas of Council meetings or on the public register have to be recorded and supplied to applicants.

This decision directly affects the discussions over the new code of access to be agreed under the Amsterdam Treaty on the issue of the "space to think". The Council and Commission maintain the need for this "space" and propose that such documents should be permanently excluded from public access. Now the Ombudsman has ruled that:

"The Ombudsman agrees with the complainant's view that citizens should have the right to know which documents were placed before the Council in order to find out what influences have been brought to bear in determining public policy...

The Ombudsman considers that principles of good administration require that in order to allow citizens to make proper use of their right of access to documents, all documents that are put before the Council are listed in a document or register that is accessible to citizens.

The Council tried to argue that these documents were only the views of a "single person" or a "very small group of persons". Statewatch countered by saying that the views of a "single person" may be of greater or lesser significance, for example, if that person was the Secretary-General of the Council. Similarly, the views of a "very small group of persons" could be those of several EU member states. The Ombudsman did not accept that such documents fall outside the code of access.

In the two complaints from Statewatch against the Council of the European Union over access to documents the Ombudsman found there had been three instances of maladministration and has made two Recommendations (under Article 3.6 of the Statute of the Ombudsman, one of his strongest powers) which the Council has to comply with by 31 May 2001.

Council has to hand over Agendas of the EU-US "Senior Level Group and documents on the EU-FBI telecommunications surveillance plans

In a further Recommendation the Ombudsman says that the Council has to hand over the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" set up under the Transatlantic Agenda and a series of documents from the Police Cooperation Working Party.

The Council first tried to refuse access to the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" on the grounds that there were three authors - the Council, the Commission and the US authorities. When the Ombudsman made a decision in favour of Statewatch being given access, on 28 June 1998, the Council again refused on entirely new grounds - that the agendas were held by the General Secretariat of the Council but not by the Council. Now the Ombudsman has ruled that there is: "nothing that would warrant the conclusion that the Council's General Secretariat should be considered as "another Community institution or body". The Council now has to supply the agendas of these meeting unless they fall under the exceptions in Article 4 of the present code - an argument which they could have tried but have not over the past five years.

The Council also has to release five "Meetings documents" submitted by the UK and Germany to the meeting of the Police Cooperation Working Party on 3-4 September 1998. These documents concern the controversial extension of telecommunications surveillance to mobile phones and the internet contributing to ENFOPOL 98.

Tony Bunyan, Statewatch editor commented:

"The European Ombudsman has done a great service for democratic standards in the EU by declaring that there cannot be whole categories of secret<