EU: Statewatch case: Ombudsman & the Council
01 March 1997
The European Ombudsman has told the EU Council of Ministers to reply to his request for a response to six complaints lodged by Statewatch (see Statewatch, vol 6 no 6). The Council's first response was to tell the Ombudsman that he had no powers to send them complaints about "third pillar" issues (justice and home affairs) - the Ombudsman says he has and hints that unless they reply to his second letter he will have to refer the matter to the European Parliament who in turn may take the issue to the European Court of Justice. The Ombudsman, Mr Söderman, said he would fight this case "to the bitter end".
The European Ombudsman declared the six complaints of maladministration, lodged by Statewatch in November and December 1996, to be "admissible" on 15 January 1997. At the same time the Ombudsman sent copies of the complaints (together with the relevant correspondence) to the Secretary General of the Council in Brussels. The Ombudsman asked the Council to "submit comments" on the complaints by the end of March.
The job of drafting a response from the Council to the Ombudsman was given to the General Affairs Group, referred to by the unfortunate shorthand as the "GAG Group". GAG met on 24 February and 3 March only to find the 15 EU governments split three ways. The record of the meeting on 3 March shows that five governments said the Ombudsman could not send them complaints about "third pillar" issue:
"Five delegations are of the opinion that the Ombudsman is not permitted to examine the application of decision 93/731/EG, concerning the applications for access to documents under Title VI."
Five governments said the Council should comply and give its comments on each of the complaints:
"Another group of five delegations defends the opposite opinion, that is that the Ombudsman is permitted to investigate the legitimacy of the complaints in question and that the Ombudsman should get a factual answer on the matter."
Four governments wanted to wait until the European Court of Justice has given its verdict on the case brought by the Tidningen Journalisten, the paper of the Swedish Journalists Union:
"A third group of four delegations tends to chose a transitional solution, that is to wait for a final decision from the Council until the verdict in the case Tidningen Journalisten (T-174/95), where the problem is if ECJ has the competence or not in cases of the same kind."
The Journalisten case is unlikely to be finished before the autumn at the earliest. One delegation did not take a position. The GAG Group therefore referred the issue to COREPER (the committee of permanent representatives of each of the 15 EU governments) for decision.
At the COREPER meeting on 6 March the record says:
"the Chairman noted a majority of Delegations were in favour of the view that the Ombudsman is not competent to examine the substance of the complaints in question. The Committee asked the General Affairs Group to draft a new letter taking into account their discussion."
The GAG Group met again on 18 March and COREPER on 19 March and the reply to the Ombudsman was adopted at the meeting of the General Affairs Council on 24 March.
Now a 9-6 split emerged in the Council. Nine countries backed telling the Ombudsman he could not send them complaints about justice and home affairs, six took a completely opposite view and published a Declaration to this effect:
"While the Ombudsman is not competent to deal with matters falling under Titles V and VI of the TEU, these Delegations consider that this case concerns an inquiry into alleged maladministration in the application of Council Decision 93/371 on Public Access to Council documents, for which the Ombudsman is competent."
The six governments in favour of responding to the Ombudsman were: Austria, Belgium, Denmark, Finland, Netherlands and Sweden.
The nine governments against were: France, Germany, UK, Ireland, Italy, Spain, Portugal, Greece and Luxembourg.