EU: Council U-Turn in Statewatch case (feature)
01 May 1997
The Council of the European Union has made two U-turns on the issue of access to documents, first on the Statewatch complaints lodged with the Ombudsman and second, by inserting the right of citizens to put complaints to the European Ombudsman on justice and home affairs into the revised Title VI of the Amsterdam Treaty. These are small, but significant advances in the ongoing struggle to establish the right of access to Council documents.
On 26 March the Council rejected a request by the European Ombudsman, Mr Söderman, to respond to six complaints concerning access to Council documents lodged by Statewatch. The Council had told the Ombudsman that the complaints "are inadmissible" and "their substance cannot be considered" because the complaints concerned "documents relating to justice and home affairs cooperation".
However, on 20 June the Council did a complete, if at times reluctant, U-turn and sent the Ombudsman a response to try and answer each of the six complaints.
The Council is still not conceding the Ombudsman's general right to inquire into refusal of access to documents concerning justice and home affairs:
"In order to enable you to consider Mr Bunyan's complaints from the sole point of view of how the Council administered its Decision 93/731/EC [the Code of access], without examining the content of the documents requested nor appraising the substance of documents falling under Titles V and VI of the TEU and their confidential character (Article 4(1) of Decision 93/731/EC), the Council is prepared in the spirit of sincere cooperation, to supply all useful information concerning the procedure it followed to apply the Decision in this case."
On the three major complaints - where complaints followed "confirmatory applications" and the final decision was taken by the Council of Ministers - the Council seeks to defend its decisions and is not budging. These three major complaints are:
1) over the use of the term "repeat applications" - where every new request is treated as a "repeat application" because requests always concern the Council of justice and Home Affairs Ministers. Refusing access by saying that "a very large document" (which is the Decision on access to documents) means the same as "a very large number of documents" (which is not in the Decision on access to documents). Where either the excuse of "repeat applications" or "very large number of documents" is used by the Council they then use a "fair solution" to send only some of the documents requested.
2) the failure to give specific reasons for refusing access to each individual document (which goes against the judgement in the European Court of Justice in the Carvel case) and the use of the term "very recently adopted" to deny access. The complaint asked: what does "recently" mean?
3) the treatment of three separate requests sent on different dates, in separate letters, for a different set of documents, as one request, and not even to consider requests in two of the three letters.
On the three, procedural, complaints the Council is giving ground in response to the Statewatch complaints. The complaint that the Council was not "conserving", that is destroying, agendas of meetings of the numerous Working Parties under the K4 Committee has led to a change of practice:
"since the problem arose as a result of the requests made by Mr Bunyan, draft agendas for Justice and Home Affairs (JHA) meetings have been systematically kept by the General Secretariat departments concerned."
The Council's reasoning for not "conserving" agendas in the past is tortuous:
"A record of each meeting convened is moreover drawn up solely on the basis of the agenda for the meeting, which is adopted at the beginning of the meeting itself on the basis of the draft agenda sent by telex but which may differ from the draft."
The "non-violation" complaint that the Council fails to keep a register of all decisions taken under justice and home af