EU: The battle for EU openness (feature)
01 January 1998
Statewatch has won the second of the six complaints against the Council of Ministers it lodged with the European Ombudsman in 1996. In his letter to the Council of 20 November 1997 the Ombudsman, Mr Jacob Söderman, invited them to agree that for the purposes of the Decision on access to documents the "Presidency" of the Council of Ministers was not a separate "author" to the Council itself. The Council replied on 20 January which says: "I am pleased to confirm that the Council does not consider its Presidency to be "another institution", separate from the Council for the purpose of Article 2, paragraph 2 of the Council Decision 93/731/EC..", signed for the Council by UK Chancellor of the Exchequer Gordon Brown.
The complaint arose from a request by Statewatch editor Tony Bunyan in July 1996 which was turned down because the Council said the "Presidency" of the Council of Ministers was a separate "author". As a result of the complaint the Council now says its practice has changed - the Council always presents any change of practice as if it was going to do it anyway rather than as a result of a complaint against it.
Statewatch won its first complaint, which forced the Council to stop destroying the agendas of meeting in November 1997. A third complaint regarding the Council's failure to maintain an up-to-date list of measures agreed is expected to be resolved in soon. The three "major" complaints are still outstanding.
New Statewatch complaint
The letter from the Council of 20 January 1998 while conceding the issue of the "Presidency" not being separate from the Council of Ministers went on to set out major qualifications on this position. On 29 January the Ombudsman invited Statewatch to respond by 28 February which we have done.
First, the Council that any document written by a EU member state falls under Article 2.2 and that requests for access have to be made direct to that member state. Statewatch has replied rejecting this argument on the grounds that any document which is adopted by the Justice and Home Affairs Council or forms part of its policy-making process must be accessible under the Decision.
Second, the Council argues that where the "Presidency" is one of three authors "establishing a document" with the Commission and "the US authorities" it cannot consider requests for access. Statewatch's response strongly rejects this argument.
The "Peers" case
On 25 November 1997 the Council responded to the four complaints lodged by Steve Peers of Essex University against them concerning access to documents (Statewatch, vol 7 no 3). The first complaint deals with the same issue as in the Statewatch case, the use of "repeat applications" and "very large documents". Steve Peers raised the issue in this context of the need for the Council to "consult" the applicant before applying these restrictions. The Council extraordinarily tries to contest whether the joint "Code of conduct concerning public access to Council and Commission documents" agreed on 6 December 1993 applies to the Council's Decision on access of 20 December 1993. Reluctantly "assuming" it might the Council says that the denial of access by the Council to a request in its response "could" constitute consultation on the grounds that the applicant can lodge an appeal.
In response to complaint number 3 the Council seeks to defend the need for protecting "confidentiality" in the "interest of the institution as follows:
"It is essential that the Council can deliberate and work without each document produced or circulated during its discussions being automatically accessible to the public, since the Council's effectiveness depends largely on its members' capacity for compromise, flexibility and openness."
Steve Peers has now responded to the Council's defence of its practice.
UK Presidency proposals
Following on the commitment of UK Foreign Secretary Robin Cook the UK Presidency sent a report to the<